Broadway Theaters, Inc., hereinafter referred to as defendant, appeals from a judgment recovered by plaintiff for damages sustained when he fell in the Orpheum theater while performing a “comedy cycling act” which was one of a number of vaudeville acts on the program. Pursuant to a written contract plaintiff and his partner took part in a number of performances. At the conclusion of each performance plaintiff descended from a high bicycle wheel a distance of about fourteen feet. Before the first performance the man in charge of the theater apparatus to be used in the performance, known as the “fly-man”, with plaintiff’s assistance, tied a rope to a batten in the theater. This rope was to be used by plaintiff in descending at the termination of the performance. There were a large number of battens in the theater and defendant’s fly-man selected the batten to be used. During the first performance plaintiff heard noises caused by the scraping of some of the battens, which were being moved up and down. He complained to the fly-man, who had had much experience in matters of the kind. The fly-man replied that he would examine the battens and rope and ascertain if it were safe to continue their use. Later the fly-man informed plaintiff that it was safe to use the apparatus. When plaintiff made a second complaint about the noise he was told that a counter weight had been employed. The fly-man said to him: “Now, all right, everything is 0. K.” At the conclusion of the sixth performance plaintiff attempted to descend by the rope but the rubbing of the battens had weakened the rope to such an extent that it broke and plaintiff fell. The. judgment was given for the injuries thereby occasioned.

The trial was before the court without a jury. The court made a personal inspection of the premises and upon the conclusion of the trial found that defendant was guilty of negligence and that plaintiff was free from contributory negligence. These findings are now attacked. Defendant owed to plaintiff the duty of using reasonable care in selecting and maintaining safe apparatus for his use. The question whether defendant discharged this duty was for the determination of the trial court. There is sufficient evidence in the record to sustain the findings of the court on the issues of negligence and contributory negligence.

Defendant interposed the defense that plaintiff was an employee of defendant as that term is defined in section 8 of the Workmen’s Compensation Act and that plaintiff’s sole means of redress was by application to the Industrial Accident Commission. The written contract under which the performances were conducted provided in part as follows :

In section 8 of the Workmen’s Compensation Act an independent contractor is defined: “The term ‘independent contractor’ shall be taken to mean, for the purpose of this act; any person who renders services, other than manual labor, for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” Under the terms of the act any person rendering services to another, other than an independent contractor, is presumed to be an employee. In section 2009 of the Civil Code a servant is defined: “A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master. ’ ’ “The word ‘servant’ is generally synonymous with the word ‘employee’.” (Western Indemnity Co. v. Pillsbury, 172 Cal. 807 [ 159 Pac. 721 ].)

No decision of a reviewing court has been called to our attention in which a contract similar to the one before us has been construed with reference to the contention of defendant. It has been held repeatedly that the “control” referred to in the statute is complete control. (Western Indemnity Co. v. Pillsbury, supra; Moody v. Industrial Acc. Com., 204 Cal. 668 [ 269 Pac. 542 , 60 A. L. R. 299] ; Flickenger v. Industrial Acc. Com., 181 Cal. 425 [ 184 Pac. 851 , 19 A. L. R. 1150].) In the Western Indemnity Co. case it was held that one beneficially interested in another’s work may exercise a certain measure of control for a definite and restricted purpose without incurring the responsibilities, or acquiring the immunities, of a master, with respect to the person controlled. In the Moody case a nurse whose wages and hours of employment were covered by an operating schedule was held to be an independent contractor and not an employee of the patient within the provisions of the Workmen’s Compensation Act for the reason that she was not under the orders of the patient with reference to the methods of treating him. It has been held that a person engaged in a business of teaming and grading who undertakes to furnish a railroad contractor, for an indefinite period, with teams and drivers for use on a specified work, at a stipulated aggregate sum per day for each team, wagon, and driver, is not an employee of the contractor, within the meaning of the Workmen’s Compensation Act, notwithstanding he may drive one of his own teams. Distinction must be made between “authoritative control and mere suggestion as to detail or the necessary co-operation where the work furnished is part of a larger undertaking”. (Western Indemnity Co. v. Pillsbury, supra.)

Defendant did not have complete control over plaintiff, who contracted to furnish a “specialty” in his customary manner. The act had been prepared and arranged by plaintiff. Defendant did not have the right to control the number or size of the wheels used or the speed or direction in which they were to be propelled. Defendant refers to certain provisions of the contract which are claimed to be indicative of complete control. The fact that plaintiff’s compensation was designated “salary” is of little moment. In the Moody case, supra, the petitioner’s compensation was designated “wages”. The provision requiring plaintiff to be present at rehearsals does not establish complete control. Plaintiff’s act being one of several, orderly conduct of the theater would require that all the acts be rehearsed together for the purpose of coordinating the entire performance and synchronizing the acts with the music of the orchestra and the work of the employees of the theater. The provisions obligating plaintiff to abide by “all reasonable rules and regulations” is a requirement which, in view of defendant’s business, would naturally be imposed on independent contractors and employees alike. The fact that plaintiff agreed to abide by reasonable rules only indicates that he did not place himself under the complete control of defendant.

We conclude that the superior court had jurisdiction. The judgment is affirmed.

McComb, J., pro tern., and Crail, P. J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on August 27, 1936, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 8, 1936.