48 N.E.2d 234 (Ohio 1943), 29334, Gillum v. Industrial Com'n

Docket Nº:29334.
Citation:48 N.E.2d 234, 141 Ohio St. 373
Opinion Judge:TURNER, J.
Party Name:GILLUM v. INDUSTRIAL COMMISSION.
Attorney:Thomas J. Herbert, Atty. Gen., and Robert E. Hall, of Columbus, for appellant., Stephenson & Wilson, of West Union, for appellee. Messrs. Stephenson & Wilson, for appellee. Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for appellant.
Judge Panel:WEYGANDT, C. J., and MATTHIAS, HART, ZIMMERMAN, and BELL, JJ., concur.
Case Date:April 21, 1943
Court:Supreme Court of Ohio
 
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Page 234

48 N.E.2d 234 (Ohio 1943)

141 Ohio St. 373

GILLUM

v.

INDUSTRIAL COMMISSION.

No. 29334.

Supreme Court of Ohio

April 21, 1943

Syllabus by the Court.

1. An independent contractor is not an 'employee,' 'workman' or 'operative' within the meaning of the Workmen's Compensation Act. Sections 1465-60 and 1465-61, General Code.

2. Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.

3. Where the owner of a truck contracted to haul a certain lot of logs for a certain price, choosing his own manner and means of accomplishing the result, the reservation of the right by the employer to designate that certain types or sizes of logs be hauled as needed does not by itself make such truck owner a servant for the reason that such right of control relates to the result and not to the manner or means of accomplishing the result.

Appeal from Court of Appeals, Adams County.

Appellee's decedent entered into a contract to haul a definite lot of logs to the sawmill of J. O. Wamsley at a stipulated price per one thousand feet. While engaged, with his son, in this work appellee's decedent met injuries which resulted in his death. Appellee's claim for compensation was denied by appellant on rehearing. Upon appeal to the Court of Common Pleas [141 Ohio St. 374] a jury determined that appellee was entitled to participate in the state insurance fund.

Page 235

Judgment thereon was affirmed by the Court of Appeals.

The case is here following the allowance of a motion to certify the record.

Thomas J. Herbert, Atty. Gen., and Robert E. Hall, of Columbus, for appellant.

Stephenson & Wilson, of West Union, for appellee.

TURNER, Judge.

The correctness of the judgment below depends upon whether appellee's decedent, Andrew Gillum, was in the service of J. O. Wamsley or was an independent contractor.

The usual test applied to determine whether such an arrangement as we have here under consideration creates the relationship of servant or of independent contractor is that if the employer reserves the right to control the manner or means of doing the work, the relationship is that of master and servant, while if the manner or means is left to the operative who is responsible to the employer for the result only, an independent contractor relationship exists.

As stated in 21 Ohio Jurisprudence, 628, Section 6: 'Inasmuch as it is necessary to construe the contract in the light of all the surrounding circumstances, it is impossible to state a hard and fast rule as to what terms do or do not reserve the control in the master so as to make the employee a servant.'

Under the heading of Indicia of Relationship, 27 American Jurisprudence, 485, Section 5, is to be found the following: 'Although it is apparent, from an examination of cases involving the independent contractor relationship, that there is no absolute rule for determining whether one is an independent contractor or an employee, and that each case must be determined on its [141 Ohio St. 375] own facts, nevertheless, there are many well-recognized and fairly typical indicia of the status of an independent contractor, even though the presence of one or more of such indicia in a case is not necessarily conclusive. It has been held that the test of what constitutes independent service lies in the control exercised, the decisive question being as to one who has the right to direct what shall be done, and when and how it shall be done. It has also been held that commonly recognized tests of the independent contractor relationship, although not necessarily concurrent or each in itself controlling, are the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price, the independent nature of his business or his distinct calling, his employment of assistants with the right to supervise their activities, his obligation to furnish necessary tools, supplies, and materials, his right to control the progress of the work except as to final results, the time for which the workman is employed, the method of payment, whether by...

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