Motion Picture Herald (Mar-Apr 1947)

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L— — __--J »6.00 »vii«»r«> in Ihc United «*l.it«-«» A LINE O' LAW OR TWO Actual suits involving points of law bearing on theatre operation, concisely described and analyzed in laymen's terms for the purpose of helping theatre management to avoid conditions which might lead it to be sued, and of providing cases on which its own suits or legal defense might be based. All decisions given are of higher courts and of recent date. By LEO T. PARKER, Member Ohio Bar LEO T. PARKER When an Employe Is Not an Employe when deciding whether a theatre employe is a "legal employe" or "independent contractor," many employment angles must be considered. An employer is not liable for payment of social security, unemployment insurance or state workmen's compensation on independent contractors ; also, an employer is not liable for injuries to persons or property caused by independent contractors, and need not pay insurance premiums for this protection. Moreover, an employer may sue and recover damages from an independent contractor who fails to perform work or services in accordance with prior agreement. Ordinarily an independent contractor, legally, is a secondary employer who performs specified work or services for the primary employer, and the latter is relieved from many and numerous obligations, responsibilities and liabilities. For illustration, in Vaughan v. Warner (157 Fed. [2d] 26) it was shown that the only control a theatre operator had over vaudeville performers was the time of their appearance on the program and the power to delete objectionable matter. The higher court held that these vaudeville performers were "independent contractors" and not "employes" and the theatre owner was not obligated to pay the state unemployment compensation contributions on remuneration or wages paid such performers. The higher courts have established law that an independent contractor is one ( 1 ) who performs work requiring skill; (2) who produces certain results according to his own means and methods; (3) who furnishes part or all of the equipment fur doing the work; (4) who is engaged in a recognized employment and is paid either a gross sum of money or by piece work; and (5) who is free as to his hours of labor and under no obligation to work exclusively for his employer. This was brought out in Boehick Com pany v. Industrial Commission (16 N. W. [2d] 298). Here it was shown that an owner of a truck rented it, with its driver, to a theatre operator. The owner of the truck carried the driver on his payroll, paid the driver's unemployment insurance, social security tax and compensation insurance. The theatre operator to whom the vehicle was rented paid the owner a flat rate of $6 per hour and had no control over the driver. The driver of the vehicle was injured and the question presented the court was: Who is liable for payment of compensation to the injured driver? The higher court held that the owner of the vehicle was an independent conti actor and was fully responsible, thereby relieving the theatre operator from liability. Testimony Determines Obscure Lease Terms A court generally will construe the obligations of parties under a lease contract by reference to the testimony where the lease does not clearly define the rights and obligations of the parties. For example, in Waukegan Times Theatre Corporation v. Conrad (70 N. E. [2d] 74) a dispute arose between a theatre corporation which leased a theatre building from its owner. The dispute involving payment by the theatre corporation for oil used to heat the building. The higher court held that the theatre corporation must pay the oil bill because the lease contract did not clearly state that the landlord would pay to heat the building, and the theatre corporation did not demand that the landlord purchase the fuel. The Right to Operate In a Restricted Area the fact that all property owners in a restricted residential subdivision sign an agreement to permit operation of one theatre in the locality, does not give others the privilege of establishing and operating new businesses therein. This is illustrated in Kundinger v. Bagna (298 N.W. 386). Here a subdivision was platted in 1898 and the lots were sold with limitations on 22 BETTER THEATRES, APRIL 5, 1947