Opinion
No. 24922
Decided November 27, 1934.
Workmen's compensation — "Relief worker" an employee and in service of municipal corporation — Section 1465-61, General Code — Wage payable alternately in groceries and in cash.
One who applies to a municipality for relief and is given the opportunity, and required, to work for the support which he is to receive, and who, in response to such opportunity and requirement, works in one of the municipal departments which employs labor, under the direction of a municipal foreman, at a regular daily wage, payable alternately in groceries and in cash, is in the service and is an employee of the municipality within the meaning of Section 1465-61 of the General Code; and if he sustains an injury while engaged in such work, is entitled to the benefits of the Workmen's Compensation Law.
ERROR to the Court of Appeals of Franklin county.
This case is based upon the claim of Robert McWhorter against the Industrial Commission of Ohio for the right to participate in the State Insurance Fund on account of injuries sustained while serving the city of Columbus as a "relief worker." The Industrial Commission denied the claim. On appeal to the Common Pleas Court a general demurrer was interposed. Upon the overruling of that demurrer, error was prosecuted to the Court of Appeals where the judgment of the trial court was affirmed. The case comes to this court upon allowance of motion to certify.
The case was by agreement submitted to the Industrial Commission and to the Court of Common Pleas upon the following statement of facts:
"That Robert McWhorter, a resident of the city of Columbus for a number of years past, applied for relief to the division of charities of the city of Columbus in the latter part of April, 1932. Two relief orders for groceries were given to him after investigation, these being in the sum of $2.00 each and were given to him on April 27, and April 30, 1932. The claimant, Robert McWhorter, was then given a card by the division of charities, designated as a work card, entitling him to work two days as a relief worker. He was instructed to report to the engineering department of the city of Columbus for work and so reported and worked on May 4 and May 5, 1932. He received $6.80 in cash for such labor. His name was carried on a special payroll of relief workers. He was then issued another card designated as a work card and was instructed to report for work on May 16, and May 17, 1932. He reported to a city foreman in some department, the department being unknown, and worked two days. The foreman, under whom he worked, certified on the card that the claimant had performed labor for the time specified on the card. The card was then returned to the division of charities, where a grocery order was issued to the claimant in the sum of $6.80, being computed at the same hourly rate as he would have received had he been paid in cash.
"The next work card was issued for work on May 25 and May 26, 1932, and the claimant was instructed to report to the engineering department for work. His name was again carried on a special payroll and he received $6.80 in cash for his labor.
"He next received a work card entitling him to work on June 1 and June 2, 1932, and he was instructed to report to a foreman in the street cleaning department. He reported to this foreman and was injured on June 1, 1932. The work card was certified by the foreman in the street cleaning department under whom he was working and returned to the division of charities and a grocery order issued in the sum of $3.40, being the equivalent of pay for one day's labor.
"The city of Columbus, during the months of May and June, 1932, was providing assistance to persons requiring it by giving them work for cash, paying them in cash every other week and food orders at the same rate for the intervening weeks. These food orders were given only after the required hours of labor were performed and computed on the same hourly rate as was the cash payment for the labor performed. All payments, whether made in cash or in the form of grocery orders, were certified to the city auditor for payment and were charged by him to the poor relief bond fund, such fund being a fund created under the provisions of Amended Senate Bill No. 4, entitled 'An act to authorize the issue of bonds by counties and cities and the expenditure of public money for the relief of the poor and unemployed, and the investment of public funds in such bonds, to levy an excise tax on certain public utilities and to declare an emergency', being enacted by the Eighty-ninth General Assembly in special session on March 31, 1932, effective April 6, 1932. Cash payments made to the claimant were charged to work relief and grocery orders were charged to direct relief, these being sub-classifications of the poor relief bond fund.
"It is further stipulated that the claimant sustained an injury while working in the street cleaning department of the city of Columbus on June 1, 1932, such injury being sustained while he was performing the duties assigned to him by the foreman in that department, under whose supervision he was working, and it is further stipulated that the claimant, Robert McWhorter, filed an application for payment of compensation and medical services with the Industrial Commission of Ohio on June 7, 1932, and that the commission, on September 13, 1932, disallowed such claim for the reason that the proof on file fails to show that the claimant was an employee at the time of injury coming within the provisions of the Workmen's Compensation Act and that thereafter an application for rehearing of claim was filed on September 28, 1932."
Mr. John W. Bricker, attorney general, Mr. R.R. Zurmehly, Mr. Donald J. Hoskins, prosecuting attorney, and Mr. J.E. Bowman, for plaintiff in error.
Mr. Samuel L. Zuravsky, for defendant in error.
The provisions of Section 1465-61, General Code, which specify the persons to whom state industrial insurance shall apply, are very broad:
"The term 'employe', 'workman' and 'operative' as used in this act, shall be construed to mean:
"(1) Every person in the service of the state, or of any county, city, township, incorporated village or school district therein, including regular members of lawfully constituted police and fire departments of cities and villages, under any appointment or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, township, incorporated village or school district therein * * *."
It seems to this court that such language is broad enough to cover an indigent workman who applies to a city for relief and is required to perform labor to the value of the relief afforded, under the direction of the city authority having charge of such labor, and who is credited for such labor at the same rate allowed other laborers, even though he is carried as a "relief worker" on a separate payroll and paid out of a special fund created by "bonds for relief of poor", as provided in Sections [2294-1] to [2294-13], General Code (114 Ohio Laws, pt. 2, 17).
The question is not answered by technical legal principles. The problem raises hair-line distinctions and cannot be solved by an arbitrary interpretation of words and phrases. It must be considered in the light of the public policy which prompted the legislation involved.
The question has been raised in other jurisdictions and this court has given careful consideration to the citations furnished by plaintiff in error, as well as to the very thorough opinion of the Attorney General. The cases that hold against the extension of industrial insurance to relief workers, it seems, are based upon facts which differ from those presented here, or on terminology not quite so broad as that contained in the Workmen's Compensation Act of this state. In some of those cases the workmen were under the direction of purely charitable institutions, such as the Red Cross, or were serving with no definite arrangement for pay. The Attorney General's opinion was given before the enactment of the relief legislation referred to above, when conditions were different from those that exist today. It seems clear that the purpose of the recent relief legislation was to broaden the authority of municipalities and other political subdivisions so that aid might be extended to the indigent by way of employment. And in the light of such legislation, relief workers may be distinguished from paupers and indigent persons as defined by the former poor laws, Section 3476 et seq., General Code.
Emphasis is laid upon the fact that the claimant was an object of the city's bounty, a ward, a charge. It is contended that the relationship between the workman and the city was due to circumstances and not the result of free, mutual contract. It is stated that there is no distinction between those who receive work relief and those who receive direct relief. It seems much more reasonable, however, to distinguish between those who work for their support and those who do not work for their support, than to distinguish between laborers engaged in the same work, paid at the same rate, some of whom are employed directly by the city and some indirectly through the relief agency. All those who labor at the same work should receive the same wages and the same benefits. The city received the services upon its promise to pay at a definite rate. It had the right to reject the services, to discontinue the work. It directed where and how the work should be performed. The urgency of the times may be fully conceded and still there is sufficient contractual relationship between the city and the workman to give rise to the relationship of employer and employee.
It is urged that to impose upon the city the burden of furnishing insurance in addition to the burden of furnishing relief is an additional expense not within the purview of the relief law or the Workmen's Compensation Act, and that such an additional burden would discourage cities from offering relief work. On the other hand, it may be stated that to treat relief workers as public wards would weaken the incentive to accept work when it is offered. The purpose of the law is to keep men occupied in gainful occupations so that they may not become idle paupers. Moreover, the additional expense occasioned by the extension of insurance to relief workers is probably not much greater than the expense of caring for injured relief workers directly.
It seems to this court more in harmony with the spirit of work-relief legislation to hold the claimant to be an employee than to hold him to be a pauper or ward. A sound public policy prompts the efforts of the state to preserve the self-reliance of its citizens, even if at extra expense. It is as important to preserve the character as to preserve the lives of its citizens. "Ill fares the land * * * where wealth accumulates and men decay." The state recognizes that many of its citizens are indigent, but it still wishes them to be independent. The relief legislation was enacted with that purpose in view. The Legislature might have excepted relief workers from the benefits of industrial insurance in the relief legislation if it had cared to do so, or it might have modified the comprehensive phraseology by which it defines "employee" in the Workmen's Compensation Act. This court will not create an exception where the Legislature has not made one. The evolution of public welfare has been from public "charity" toward social justice. Courts should facilitate such development by an enlightened and liberal interpretation of all welfare laws.
The judgment of the Court of Appeals will therefore be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.