In Daniels, however, MacGregor and Manpower were separate and distinct corporations, each of whom had employees and each of whom "`had complied with the provisions of the Ohio workmen's compensation law'" by payment of premiums for their respective employees (which is also true in the instant case).Summary of this case from Campbell v. Central Terminal Warehouse
Decided April 21, 1965
Workmen's compensation — Employee engaged and paid by employer to work for employer's customer — Customer to control manner or means of performing work — Employee an "employee" of customer — Complying customer not liable in tort to employee, when.
Where an employer employs an employee with the understanding that the employee is to be paid only by the employer and at a certain hourly rate to work for a customer of the employer and where it is understood that that customer is to have the right to control the manner or means of performing the work, such employee in doing that work is an employee of the customer within the meaning of the Workmen's Compensation Act; and, where such customer has complied with the provisions of the Workmen's Compensation Act, he will not be liable to respond in damages for any injury received by such employee in the course of or arising out of that work for such customer. (Section 35 of Article II of the Constitution and Section 4123.74, Revised Code, applied.)
APPEAL from the Court of Appeals for Hamilton County.
This action was instituted to recover damages for personal injuries which plaintiff sustained on June 11, 1960, when he fell from a ladder while engaged in installing light fixtures in a building occupied by defendant, MacGregor Company.
MacGregor filed a motion for a summary judgment.
The pleadings, a deposition, affidavits, and a stipulation reveal, without dispute, the following facts:
Plaintiff was employed by Manpower, Inc. Manpower provides temporary help to individuals and companies. Upon request Manpower dispatches the number of skilled or unskilled personnel asked for to the premises of those applying to perform whatever services are requested of them in keeping with their particular skill or work. The persons reporting to the job receive instructions from the customer as to what tasks are to be performed in and about the customer's premises and how they are to be performed.
Manpower retains the exclusive right to hire and discharge its employees and to determine which of its employees are to be assigned to its customers. It also reserves the right to remove and to reassign its employees from one customer to another even during the course of a workday.
Manpower is paid by the customer on the basis of a fixed rate for each man-hour of work performed by its personnel for the customer. The wages paid to Manpower's employees have no direct relation to the amount paid to it by its customers, and Manpower's customers make no payments to the Manpower personnel.
Manpower deducts from its employees' wages the income and social security taxes and similar deductions, and no such deductions are made by its customers. Manpower, and not its customers, pays all workmen's compensation premiums and unemployment compensation payments for the protection of its employees.
In engaging the services of Manpower personnel, MacGregor executed a memorandum agreement which read in part:
"* * * The undersigned will not employ the person named above now or for a period of ninety days following the completion of work for the undersigned by the person named above."
At the request of MacGregor, plaintiff and four other employees were told by Manpower to report to the maintenance foreman of MacGregor at its premises. They were instructed by Manpower to perform whatever services were requested of them under the specific direction of MacGregor employees. No equipment of Manpower was on MacGregor's premises, and all the equipment that was used by Manpower's personnel was the property of MacGregor. There is no evidence that, during the period plaintiff was at work at MacGregor, Manpower had any of its officers or employees on the premises of MacGregor to instruct, supervise or direct the work which Manpower's personnel performed for MacGregor. All work performed by plaintiff both as to the nature of the work and how it was to be done was under the direction of MacGregor.
In his deposition plaintiff's recollection was that he and the other Manpower employees had worked at MacGregor all week, from Monday until Friday, when he was injured.
Plaintiff was paid by Manpower at the rate of one dollar an hour for the work performed by him at MacGregor.
Manpower and MacGregor each employed three or more workmen or operatives and were amenable to the workmen's compensation law of Ohio prior to and at the time Daniels was injured.
As a result of a claim made on behalf of plaintiff as an employee of Manpower for the same injuries set forth in the petition, plaintiff was receiving compensation benefits from the state Workmen's Compensation Fund.
Section 35 of Article II of the Ohio Constitution provides in part:
"Such compensation shall be in lieu of all other rights to compensation, or damages, for * * * injuries * * * and any employer who pays the premium * * * provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such * * * injuries * * *."
A reading of the whole section indicates that the words "such * * * injuries" refer to the words in the previous sentence of the section "injuries * * * occasioned in the course of such workman's employment."
Section 4123.74, Revised Code, reads, in part:
"Employers who comply with Section 4123.35 * * * shall not be liable to respond in damages at common law or by statute for any injury * * * received or contracted by any employee in the course of or arising out of his employment * * * during the period covered by such premium so paid into the State Insurance Fund * * *."
So for as pertinent, Section 4123.35, Revised Code, reads:
"* * * every employer * * * shall semiannually * * * pay into the State Insurance Fund the amount of premium fixed by the Industrial Commission for the employment or occupation of such employer, the amount of which premium to be so paid by each such employer to be determined by the classifications, rules, and rates made and published by said commission. Such employer shall semiannually pay such further sum of money into the State Insurance Fund as may be ascertained to be due from him by applying the rules of said commission * * *."
The stipulation in the instant case reads, in part:
"As of the date of the plaintiff's injury * * * both * * * MacGregor * * * and Manpower * * * had complied with the provisions of the Ohio workmen's compensation law."
The Common Pleas Court granted the motion by MacGregor for summary judgment.
The Court of Appeals affirmed that judgment.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Mr. James L. O'Connell and Messrs. Lindhorst Dreidame, for appellant.
Messrs. Rendigs, Fry, Kiely Dennis and Mr. John A. Kiely, for appellee.
Plaintiff's first contention is that neither Section 35 of Article II of the Constitution nor Section 4123.74, Revised Code, bars a suit for personal injuries by a loaned servant against the employer to whom he is loaned.
However, in our opinion, previous decisions of this court require the following conclusion:
Where, as in the instant case, an employer employs an employee with the understanding that the employee is to be paid only by the employer and at a certain hourly rate to work for a customer of the employer and where it is understood that that customer is to have the right to control the manner or means of preforming the work, such employee in doing that work is an employee of the customer within the meaning of the Workmen's Compensation Act; and, where such customer has complied with the provisions of the Workmen's Compensation Act, he will not be liable to respond in damages for any injury received by such employee in the course of or arising out of that work for such customer.
Thus, in Bobik v. Industrial Commission (1946), 146 Ohio St. 187, 64 N.E.2d 829, a truck owner, Muni, leased his truck to a common carrier, Aztec, under an agreement that the truck owner was to supply the operator of the truck as well as the truck. Plaintiff was employed by the truck owner, Muni, to drive the truck. Plaintiff was injured while driving the truck on business of Aztec. His claim for workmen's compensation was denied by the Industrial Commission because plaintiff was not "an employee of the employer * * * Aztec * * * within the meaning of the Workmen's Compensation Act." This court held that he was, and that his claim should be allowed.
The arrangement between the truck owner, Muni, and the borrowing employer, Aztec, in that case is described in the opinion (page 190) as follows:
"Muni agreed to furnish the truck, driver, gasoline, oil, tires, accessories and repairs at his own expense. He paid the plaintiff $18 per trip plus a bonus for over-weight. Aztec * * * paid Muni for furnishing equipment, facilities and operator thereof $40 per trip, plus twenty cents for each 100 pounds over 20,000 * * *."
The syllabus reads in part:
"1. The chief test in determining whether one is an employee or an independent contractor is the right to control the manner or means of performing the work.
"2. If such right is in the employer, the relationship is that of employer and employee, or master and servant; but if the manner or means of performing the work is left to one responsible to the employer for the result alone, an independent contractor relationship is thereby created."
There is nothing in the syllabus or opinion of that case to indicate that the question whether one is an employee within the meaning of the Workmen's Compensation Act should be any different from the question whether one is an employee for the purposes of applying the doctrine of respondent superior. Other decisions in which this court has been confronted with the problem as to whether an employee of one employer has become an employee of another within the meaning of the Workmen's Compensation Act have not even suggested that there should be such a difference. See Behner v. Industrial Commission (1951), 154 Ohio St. 433, 96 N.E.2d 403; Giovinale v. Republic Steel Corp. (1949), 151 Ohio St. 161, 172, 173, 84 N.E.2d 904.
As stated in paragraph one of the syllabus of the Behner case:
"* * * If the right to control the manner or means of performing the work is in the person for whom the service is performed, the relationship is that of employer and employee or master and servant * * *."
This is not an instance where, to use the words quoted by plaintiff from 1 Larson, Law of Workmen's Compensation, Section 47.10, "an employee status to which he has never consented" is being "thrust upon a worker." Cf. Drexler, an Infant, v. Labay (1951), 155 Ohio St. 244, 98 N.E.2d 410, wher this court refused to permit that. In the instant case, plaintiff's agreement with Manpower contemplated that Manpower would pay plaintiff for work for a customer of Manpower such as MacGregor, who was to have the right to control the manner and means of performing the work and who was to pay Manpower at least enough so that Manpower could pay plaintiff what he was willing to accept for doing that work. In effect, the agreement between plaintiff and Manpower was such that plaintiff can be said to have authorized Manpower to offer to MacGregor plaintiff's services as an employee of MacGregor so that, after acceptance by MacGregor of that offer, there was a contractual relationship among the three under which Manpower was to make certain payments on behalf of MacGregor to and for plaintiff, plaintiff was to work as an employee for MacGregor, and MacGregor was to make certain payments to Manpower.
As plaintiff recognizes, Trumble Cliffs Furnace Co. v. Shachovsky (1924), 111 Ohio St. 791, 146 N.E. 306, involved an injury to an employee of an independent contractor of the party sued. It could hardly be contended with reason that Manpower was acting as an independent contractor with respect to the work which plaintiff in the instant case was doing at the time of his fall. There was no contention in George v. City of Youngstown (1942), 139 Ohio St. 591, 41 N.E.2d 567, that the WPA worker, there allowed to sue the city, was an employee of the city at the time of his injury.
In view of the foregoing decisions of this court, it is not necessary to consider the authorities outside Ohio that have been referred to by the parties. We note, however, that our conclusion is supported by Combustion Engineering Co. v. Industrial Commission (1948), 254 Wis. 167, 35 N.W.2d 317; American Stevedores Co., Inc., v. Industrial Commission (1951), 408 Ill. 449, 97 N.E.2d 325; Benoit v. Hunt Tool Co. (La.App. 1950), 45 So.2d 512; and St. Claire v. Minnesota Harbor Service, Inc. (1962), 211 F. Supp. 521. The last case even involved Manpower, Inc.
It may be noted that (probably because of State, ex rel. Bettman, Atty. Genl., v. Christen, 128 Ohio St. 56, 190 N.E. 233), no contention has been made that plaintiff was, within the meaning of the exclusionary language of Section 4123.01 (a) (2), a "person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer."
In the instant case, reasonable minds could conclude only that the right to control the manner and means of performing the work which plaintiff was doing when injured was in MacGregor. It necessarily follows that plaintiff was an employee of MacGregor at that time. Bobik v. Industrial Commission, supra ( 146 Ohio St. 187) ; Giovinale v. Republic Steel Corp., supra ( 151 Ohio St. 161, paragraph two of syllabus); Behner v. Industrial Commission, supra ( 154 Ohio St. 433, paragraph one of syllabus); Halkias v. Wilkoff (1943) 141 Onio St. 139, paragraph four of syllabus, 47 N.E.2d 199.
ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.
HERBERT, J., dissents.