(dissenting).
I cannot, on the record before me, find a legal relationship of agency existing between appellee and the Consolidated Radio Artists which has any legal effect upon the determination of the status of employment between appellee and the restaurant. Neither can I extend the purposes of a collective bargaining contract to an abandonment of legal rights. Such legal rights as may arise from a negligent injury to life or limb are to be determined from the existing facts, not from the declarations of a collective bargaining agency.
The theory advanced by the court was never presented in the trial court, in fact, counsel for appellant there pursued the theory that the contract terms made the leader of the band, Billy Arnold, appellee’s representative in entering into the contract. Obviously, this is not true from a reading of the contents, and nowhere in the record is there evidence that outside the terms of the contract there existed the necessary authority in either Billy Arnold or the Union to establish appellee in an employment status with such extended implications as to tort liabilities.
The trial court had before it the contract and the facts. The facts were that the contract between the band and the restaurant was neither seen nor signed by appellee and that she did not know its terms. There is nothing whatever either in this contract or in the general law as to collective bargaining to indicate that without specific knowledge and sanction any one would deliberately permit a collective bargaining agency to wipe out rights to recover for injury to' life or limb. During the engagement Arnold had sole and exclusive charge of ap-pellee’s musical activities, telling her when to report to work, selecting the music she was to play, and designating the time when she would play. He had hired her for his-band and had the exclusive right to discontinue her services. The procedure for paying appellee and the other musicians in the band was for Arnold to receive the total amount of the wages from the restaurant company and in turn distribute the-amounts to the members. I think that with these facts before him, the trial court acted correctly in striking the contract from the evidence and holding as a matter of law that appellee was an employee of Billy Arnold, an independent contractor, and not-an employee of Earle Restaurant, Inc. The trial court undoubtedly felt, as I do,, that the actual conduct of the parties involved governed the determination of their legal relationship, rather than the contract whose provisions appellee did not know and to which she had not subscribed.
*279The status of band leaders and band members under union contracts similar to the instant one has been before the courts, both Federal and State, on numerous occasions, involving- in the main social security-taxes, and to a lesser extent workman’s and unemployment compensation. See 158 A. L.R. 915. The Federal Courts, until recently, have been unanimous in holding that band members were employees of the band leader, and not of the concern engaging the band. Williams v. United States, 7 Cir., 126 F.2d 129, certiorari denied 317 U.S. 655, 63 S.Ct. 52, 87 L.Ed. 527; Spillson v. Smith, 7 Cir., 147 F.2d 727; Bartels v. Birmingham, D.C., 59 F.Supp. 84; Biltgen v. Reynolds, D.C., 58 I1 .Supp. 909; Los Angeles Athletic Club v. United States, D.C., 54 F.Supp. 702; Aberdeen Aerie No. 24, etc. v. United States, D.C., 50 F.Supp. 734. The court below correctly relied on this line of cases, especially the Williams case, in ruling as a matter of law that on the facts before him appellee was not an employee of appellant. Subsequent to the judgment below, the Circuit Court of Appeals for the Eighth Circuit handed down its decision in Birmingham v. Bartels, 157 F.2d 295, reversing Bartels v. Birmingham, supra. Since that case involves a contract identical with the instant one, the court’s holding that the band leader and members were employees of the ballroom operators for social-security tax purposes is persuasive, but I cannot say that the reasons for the decision advanced by the court are. As pointed out in an able dissent by Judge Gardner, the court completely brushed aside the findings of the trial court that the contract did not represent the true relationship of the parties and held that because the terms of the contract purportedly fixed the relationship of the parties, that relationship existed.
For the foregoing reasons I cannot agree with the court on the issue of the contract. Since I agree with them that the trial court was correct in all other respects I am of opinion that the judgment below should be affirmed.