Opinion
Decided May 6, 1932.
Workmen's compensation — Public-employee claimant must prove contract of hire — Section 1465-61, General Code — Contractor rebuilding bridge on county highway, not employee — Terms of contract are for jury, but construction and effect are for court — Question of law, whether undisputed contract constitutes contract of hire — Contract to rebuild county highway bridge, not contract of hire.
1. That claimant recover under Compensation Law, for leg fracture incurred while executing contract to rebuild bridge upon county highway, he must prove that he was at time of injury under contract of hire (Section 1465-61, General Code).
2. Terms of contract are for jury.
3. Construction and effect of contract are for court.
4. Whether undisputed contract constitutes contract of hire is question of law for court.
5. Contract between claimant and county to rebuild bridge upon highway held contract for job of work and not contract of hire; hence leg fracture sustained by claimant while executing contract was not compensable, since claimant was contractor and not county "employee" (Sections 1465-61 and 2343, General Code).
ERROR: Court of Appeals for Coshocton county.
Mr. R.R. Zurmehly, for plaintiff in error.
Messrs. Glenn Glenn, for defendant in error.
In the court below the defendant in error herein, H.E. Henderson, was claiming the right to participate in the state insurance fund, which right was denied him by the Industrial Commission of Ohio. After proceedings before that body the case was filed in common pleas court of Coshocton county, Ohio. Over an objection of the Industrial Commission the case was submitted to the jury, and the jury returned a verdict in favor of the defendant in error, Henderson, giving him the right to participate in the state industrial fund.
It is the contention of plaintiff in error that the court erred in submitting the case to the jury, and that the jury erred in returning a verdict in favor of the claimant. The facts briefly stated are to the effect that the county commissioners of Coshocton county deemed it necessary to rebuild or resurface a bridge upon one of the public highways of that county, which road was under their jurisdiction. The cost of this work exceeded the statutory amount whereby the county surveyor or engineer could do the work by force account; therefore the county surveyor or engineer prepared plans, specifications and estimates as required by Section 2343, General Code. The work was advertised according to law, a number of bids were received, and the county commissioners found that the defendant in error was the lowest bidder; they accordingly entered into a contract with him and he furnished bond as required by law.
In this contract defendant in error agreed to do the work according to the plans and specifications, under the direction and control of the county surveyor or engineer, for the sum of $1,295.
The plans, specifications and estimates, the contract, and the bond, are a part of the evidence in this case.
For the reason that defendant in error was required to employ more than three men in the execution of this contract, he complied with the provisions of the Workmen's Compensation Law by paying the premium into the state industrial fund, as required by law.
While executing this contract, defendant in error fell from a pile of stones, fracturing his leg, and the disability complained of resulted therefrom.
Defendant in error first filed a claim with the Industrial Commission for compensation on account of said injuries, naming himself as his own employer. This claim was denied, and application for rehearing having been filed, it was again denied. He then filed claim for compensation, in which he named the county commissioners as his employers, and it is this claim which is the basis of this litigation.
The defense was made in the court below, and is now made in this court, that the defendant in error was not an employee of the county commissioners, and that the county commissioners were not his employers within the meaning of the Workmen's Compensation Law of Ohio.
The term "employee," within the meaning of the Workmen's Compensation Law, in so far as it applies to the case at bar, is defined in Section 1465-61, General Code, which reads as follows:
"Every person in the service of the state, or of any county, * * * under any appointment or contract of hire, express or implied, oral or written," etc.
We therefore start out with the proposition that before defendant in error can recover he must prove that he was at the time of injury under a contract of hire.
The contract in this case is a written contract; the contract herein is plain, clear and unambiguous.
We do not believe that it is a contract for hire, but that it is a contract for a certain job of work.
It is a well-recognized rule that, when a man is hired, he is hired to perform some act. This contract was not one which required any services on the part of the defendant in error. It called for his doing a job of work by the use of men, materials and machinery. There is nothing in the contract calling for any part of the work to be done by the defendant in error himself.
Under this contract he had a right to employ the men he needed, pay them such wages as he saw fit, discharge them if he desired to, or, in other words, he had the entire control of the men performing the work under this contract.
While it is true that the contract provided that the work should be done according to plans and specifications prepared by and under the supervision of the county surveyor or engineer, neither the defendant in error, if he performed any of the work on the job, nor any of the men performing work on the job, were under the control of said county surveyor or engineer. The work was to be done according to plans and specifications, and the county surveyor or engineer had authority, by the terms of the contract as well as by the statute, to see that the contract was carried out according to these plans and specifications, but the men who were at work upon the job were not under the direction or control of the county surveyor or engineer. See City of Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep., 408.
From an examination of the contract in this case, we find that it is the usual kind of contract entered into by county, city, state or political subdivision.
The contract is clear that defendant in error was the contractor. If at the time he was in the service of the county, under a contract of hire, then every contractor who enters into a contract to build a bridge, a road, pave a street, etc., is an employee within the meaning of the Workmen's Compensation Law. The terms of the contract in this case are not in dispute; it is a written contract.
While it is true that if there was a dispute about what the contract really was that would be a question for the jury, but when there is no dispute as to what the contract is the construction and effect of the contract are matters for the court.
The court below held that while there was no dispute on the contract, the question as to whether or not it was a contract of hire was a question of fact for the jury to determine. In so holding we believe the court below committed error.
The question is whether an undisputed set of facts and an undisputed contract constitute a contract of hire, and the same is a question of law to be determined by the court. This rule is laid down and cited in many jurisdictions, as will be seen in 13 Corpus Juris, 783, wherein it is stated that "the construction of a contract must be determined by the court as a question of law."
There is no ambiguity about this contract. There is no dispute about the contract; the language is plain and clear; it is the ordinary public contract.
We believe it is clear that this contract was a contract for a job of work, and not a contract of hire, and by reason thereof the defendant in error was not an employee within the meaning of the Workmen's Compensation Law. Therefore we find and hold that the court below committed error in submitting the cause to the jury.
It therefore follows that the judgment of the court of common pleas will be, and the same is hereby, reversed, and final judgment entered in favor of the plaintiff in error.
Judgment reversed and judgment for plaintiff in error.
SHERICK, P.J., and MONTGOMERY, J., concur.