Opinion
No. 23718
Decided February 23, 1933.
Workmen's compensation — Independent contractor — Person employed by county commissioners to decorate witness room in courthouse — Section 1465-61, General Code — Injuries to independent contractor, arising from execution of job, not compensable.
A board of county commissioners, by resolution, employed a person to do a specific job, to-wit, the decoration of a witness room in the courthouse; such person, under the contract of employment, to furnish the labor and materials within a maximum price, the board reserving no right to control over the mode and manner of executing the job. Held:
1. Such person is an independent contractor and not an employe, within the meaning of Section 1465-61, General Code.
2. Injuries to such independent contractor, arising from the execution of such job, are not compensable from the state insurance fund.
ERROR to the Court of Appeals of Union county.
This action originated in a claim presented by Maud McAdow to the Industrial Commission for an award of compensation for injuries resulting in the death of her husband. The commission denied the claim, it being of the opinion that the husband was not an employe at the time of his injury, but was an independent contractor. On appeal, a jury being waived, the common pleas court found in favor of and rendered judgment for the widow, it being of the opinion that McAdow, the injured man, was not an independent contractor, but was a servant of the county commissioners. The Court of Appeals affirmed that judgment and the cause is now here for review upon certification.
It is not now seriously disputed that the decedent's death resulted from a fall from a scaffold while in the performance of his duties. The question here presented is whether, under this record, McAdow at the time of his injury was an employe of the county commissioners or whether he was an independent contractor.
McAdow was a paper hanger and painter and was engaged by the county commissioners to redecorate a witness room in the county courthouse. His contract with the county commissioners, inscribed upon their record, is as follows:
"The matter of redecorating the male and female witness rooms and corridor came on this day for consideration and after some discussion Mr. Cashell moved that Howard McAdow be employed to redecorate the said room, he to furnish all material at a price of not to exceed $1.40 for thirty inch paper, and not to exceed fifty cents for eighteen inch paper, all other materials to be furnished at a reasonable price — all labor to be furnished at a price of sixty cents per hour — Mr. Crandell seconded the motion and the following vote was cast: Mr. Staley, I, Mr. Crandell, I, Mr. Cashell, I, and the motion was carried. The minutes read and approved this twenty-first day of October, 1929, and signed by the county commissioners."
In the prosecution of his work under his contract McAdow hired one Wood to assist him. Wood testified that McAdow paid him "sometimes fifty cents an hour and sometimes a little more;" that he had no dealings whatever with the county commissioners and that he "was working for McAdow — he had the job here," and that he received his pay either from McAdow's wife or daughter. There is no competent direct evidence that the commissioners reserved or exercised any control of the mode or manner in which McAdow was to do his job.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Mr. C.A. Hoopes, for defendant in error.
Was McAdow an employe within the terms of the Workmen's Compensation Law or was he an independent contractor? Section 1465-61, General Code, provides that an employe shall be construed to mean "every person in the service of * * * any county * * * under any appointment or contract of hire." This undoubtedly means a person employed by the county commissioners, acting under their supervision under circumstances where the commissioners could fix the hours of labor and could control the mode and manner of his work. That it does not include an independent contractor as one operating under "a contract of hire" is clearly shown by subdivision 3 of that section, which makes the Workmen's Compensation Law amenable, not to the independent contractor, but to his employe; and only then when he is an employe of an independent contractor employing three or more workmen under the present law. Since McAdow was not such an employer his assistant, Wood, had he been injured, would not have been compensated out of the fund. Industrial Commission v. Everett, 108 Ohio St. 369, 140 N.E. 767. How can it be claimed, then, if Wood could not get compensation, McAdow his employer could? Furthermore, that an independent contractor is not included as a person working under a "contract of hire" is clearly evinced by the fact that under Section 1465-45, General Code, independent contractors employing a certain number or more of workmen are required to furnish the commission with the number of their employes and their pay roll, for the fixing of their premiums.
"The Compensation Law does not apply where the injured person is an independent contractor, and the relation of employer and employe does not exist. * * * Generally speaking, an 'independent contractor' is one who exercises an independent employment and contracts to do a piece of work according to his own method, without being subject to the control of the employer, save as to the results of his work." Volume 1, Honnold on Workmen's Compensation, 208. And on page 211, the author states: "When the doing of specific work is intrusted to one who exercises an independent employment, and selects his own help, and has the immediate control of them, and the right to control the method of conducting the work, the contractor is an independent contractor." The Ohio authorities are to the same effect. In Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec., 590, it is held in proposition five of the syllabus that while an employer may be held to be liable where he retains power of control and direction over his servant, such liability does not arise where the owner contracts with an independent contractor who "has taken upon himself the responsibility of the employment of his own hands, and the control and direction of the work in conformity with the terms of the contract." Kruse v. Revelson, 115 Ohio St. 594, 155 N.E. 137, 55 A. L. R., 289; Klar v. Erie Rd. Co., 118 Ohio St. 612, 162 N.E. 793. The same rule is enforced where an independent contractor seeks compensation under the Workmen's Compensation Law. Smith v. State Workmen's Ins. Fund, 262 Pa. 286, 105 A. 90, 19 A. L. R., 1156; In Matter of Litts v. Risley Lumber Co., 224 N.Y., 321, 120 N.E. 730, 19 A. L. R., 1147; Carleton v. Foundry Machine Products Co., 199 Mich. 148, 165 N.W. 816, 19 A. L. R., 1141; Storm v. Thompson, 185 Iowa 309, 170 N.W. 403, 20 A. L. R., 658.
In determining the relation between McAdow and the county commissioners in the instant case, and especially whether McAdow was employed as an independent contractor, recourse should be had to the terms of his employment as recorded upon the minutes of the county commissioners. The resolution adopted by them discloses that McAdow was employed for a specific job; he could select his own materials and provide his own labor. He had the right to and did employ his subordinate or assistant. While the resolution provided for a maximum price for the wall paper and labor to be furnished on the job, whatever profit was made on that job went, not to the commissioners, but to McAdow himself; for the evidence shows that Wood was sometimes employed at less wages than the amount the resolution of the commissioners permitted. No reservations were made by the resolution seeking to control the mode and manner of papering the witness room. The execution of the contract was left entirely to the independent judgment of McAdow. The testimony of one of the commissioners is of doubtful competency. If the status of independent contractor was created by the resolution of the board of commissioners it was not within the competency of one of the commissioners to change that relation. However, the one commissioner who did testify stated that the only thing he did was to see Mr. McAdow personally and tell him where to hang the paper on the wall.
Since the resolution of the county commissioners clearly discloses that they employed McAdow to do a specific job within a maximum price, with no reservation of control on the part of the county commissioners, McAdow, having the power of furnishing his own materials and of hiring his own assistants, thereby controlling the amount of his profits, it is clearly evident that McAdow occupied the relation of an independent contractor and that he was not an employe under a contract of hire within the meaning of Section 1465-61, General Code.
The judgments of the lower courts will be reversed, and proceeding to render the judgment which the Court of Appeals should have rendered judgment will be rendered for plaintiff in error.
Judgment reversed.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and MATTHIAS, JJ., concur.
KINKADE, J., not participating.