Behner v. Industrial Commission

• Decision Date: 17 January 1951
• Docket Number: No. 32080,32080
• Citation: 154 Ohio St. 433,96 N.E.2d 403
• Parties: , 43 O.O. 360 BEHNER et al. v. INDUSTRIAL COMMISSION.
• Court: Ohio Supreme Court

Page 433

154 Ohio St. 433

96 N.E.2d 403, 43 O.O. 360

BEHNER et al. v. INDUSTRIAL COMMISSION.

No. 32080.

Supreme Court of Ohio.

Jan. 17, 1951.

Syllabus by the Court.

1. Whether an individual performing service for another does so as an independent contractor or as an employee is ordinarily a question of fact, the deciding factor being in whom is vested the right of control or superintendence as to the details of the work. 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; but if the control of the manner or means of performing the work is delegated to the person performing the service, the relationship is that of independent contractor.

2. A trucker who contracts with an Ohio corporation, engaged in the business of interstate commerce, to transport in interstate commerce without authority in his own right to engage in such transportation a shipment of freight by means of his own truck and equipment, serviced and maintained by him, to a designated destination for a fixed compensation, and who has the right to choose the route to be taken and to control the details of the transportation enterprise, including times and hours of employment, is an 'independent contractor' and not an 'employee,' even though he is obliged to carry and does carry such corporation's Interstate Commerce Commission plates on his equipment during the transportation operation.

3. The purpose of Administrative Rule No. 4 of the Bureau of Motor Carriers of the Interstate Commerce Commission, as authorized by Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq., to regulate interstate common carriers, is to make a carrier responsible to the public for wrongs done or injury inflicted by the carrier or those acting for it throughout the entire course of any transportation project undertaken by the carrier, and under such rule the employing carrier, as well as his independent contractor performing transportation for such carrier, may be held liable to third persons for injuries resulting from the negligent conduct of the independent contractor in such transportation.

4. A trucker who, as an 'independent contractor,' is injured while transporting goods for an Ohio corporation engaged in the business of interstate commerce is not an 'employee' of such corporation within the coverage of Section 1465-61, General Code, a part of the Ohio Workmen's Compensation Act.

At various times over a period of three or four years prior to April 17, 1945, Theodore R. Carter had transported freight, usually steel, on his own motor truck for the McCullough Transfer Company of Youngstown, Ohio, hereinafter called the transfer company, engaged in business for the most part as an interstate common carrier by motor vehicle.

The shipments made by the transfer company usually originated at the plant of the company and were transported in interstate commerce. When Carter was given a cargo for out-of-state transportation, the transfer company endeavored to plan a return shipment for him to its plant at Youngstown or at some nearby point.

The general course of business between Carter and the transfer company concerning such transportation was as follows:

Preliminary to a transportation trip Carter, on his own initiative would call a dispatcher of the transfer company and ascertain whether there were any shipments available for him. If and when Carter accepted a shipment the dispatcher would state where the shipment was to be picked up and to what point it was to be transported. Carter had no regular employment with the transfer company and had no regular working hours with it. When there were shipments for different points available, Carter was given his choice of shipments. The company did not on its own order assign to Carter any specific shipments. Carter could and would refuse certain shipments offered. Carter chose his own routes and times for making the trips. He was not required to return to the company's terminal after he had picked up a shipment, nor was he required to report to the company or any of its agents during or at the end of the trip. He was paid 75 per cent of the hauling rate except on various occasions when he received 100 per cent of the rate.

All expenses and maintenance of his truck and trailer, including cost of gasoline and oil, were paid by Carter. He was paid for the transportation without deductions for social security or other charges except for a short period when, under protest, the company deducted from his earnings social security charges. These deductions were later refunded to his estate.

When carrying shipments for the transfer company, its Interstate Commerce Commission plates were attached to Carter's truck. Carter was not authorized by the Interstate Commerce Commission to do business for himself as an interstate carrier. Carter could and did haul for other carriers under circumstances similar to those in transporting freight for the transfer company.

On April 17, 1945, while operating his tractor and trailer from Lackawanna, New York, to Niles, Ohio, loaded with steel for the transfer company, Carter collided with a parked truck near Evans Center, New York, and suffered injuries, resulting in his death.

On August 6, 1947, the Industrial Commission of Ohio denied the claim of the plaintiffs, appellees herein as widow and minor children of the decedent, for benefits from the state insurance fund on the ground that Carter was not an employee of the transfer company.

An appeal was taken to the Common Pleas Court of Mahoning County. At the conclusion of plaintiffs' evidence, the defendant rested and moved for a directed verdict. Counsel for plaintiffs moved for an instructed verdict. The trial court overruled the motion of the defendant and sustained the motion of the plaintiffs. Thereupon, the jury returned a verdict finding that plaintiffs were entitled to participate in the state insurance fund.

A motion for new trial was overruled and judgment entered.

On appeal to the Court of Appeals the judgment of the Common Pleas Court was affirmed.

The case is now in this court on appeal, a motion to certify having been allowed.

Herbert S. Duffy, Atty. Gen., T. Vincent Martin and Robert W. Beamer, Columbus, for appellant.

Michael S. Cerrezin and Richard M. Cerrezin, Cleveland, for appellees.

HART, Judge.

The sole question before this court, as in the Court of Appeals, is whether the decedent Carter was at the time of his death an employee of the transfer company within the meaning and coverage of the Ohio Workmen's Compensation Act.

Whether an individual performing service for another does so as an independent contractor or as an employee is ordinarily a question of fact, the deciding factor being in whom is vested the right of control or superintence as to the details of the work. It is not the fact of actual interference in control on the part of the one for whom the work is performed, but the right to interfere therewith which distinguishes the relationship of an independent contractor from that of a servant or agent. If the right to control the manner or means of performing the work is in the person for whom the work is performed, the relationship is that of employer and employee or master and servant; but if the control of the manner or means of performing the work is delegated to the person performing the work, the relationship is that of independent contractor. Gillum v. Industrial Commission, 141 Ohio St. 373, 48 N.E.2d 234; Bobik v. Industrial Commission, 146 Ohio St. 187, 64 N.E.2d 829; Rochester Dairy Co. v. Christgau, 217 Minn. 460, 14 N.W.2d 780; War Emergency Coop Ass'n v. Widenhouse, 4 Cir., 169 F.2d 403.

The relationship between the transfer company and Carter as created by the contract itself and as carried out in performance under the circumstances hereinbefore related at the time of Carter's death clearly was a relationship of independent contractor and not one of employer and employee. Gillum v. Industrial Commission, supra; Wilds v. Morehouse, 152 Neb. 749, 42 N.W.2d 1649.

The defendant claims that, since Carter was not an employee but an independent contractor, he was not within the coverage provided by Section 1465-61, General Code, a part of the Workmen's Compensation Act. This court likewise held as to an intrastate shipment in Gillum v. Industrial Commission, supra, and the plaintiffs do not seriously contend otherwise if the relationship be that of independent contractor. See, also, Bobik v. Industrial Commission supra; Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661; Industrial Commission v. Laird, 126 Ohio St. 617, 186 N.E. 718; Industrial Commission v. Bateman, 126 Ohio St. 279, 185 N.E. 50; Wilds v. Morehouse, supra; 21 Ohio Jurisprudence, 636, Section 15.

But the plaintiffs claim that since the transfer company was authorized to engage in interstate transportation by motor vehicle and was so engaged under its contract with Carter at the time of his death, a fact which is conceded, Carter was necessarily an employee of the company by force of Administrative Rule No. 4 of the Bureau of Motor Carriers of the Interstate Commerce Commission, as authorized by Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq.

Such Administrative Rule No. 4 of August 19, 1936, provided as follows:

'Question: Under what circumstances may a carrier add to its equipment by leasing a vehicle and obtaining the service of its owner-driver?

'Answer: The lease or other arrangement by which the equipment of an authorized operator is augmented, must be of such a character that the possession and control of the vehicle is, for the period of the lease, entirely vested in the authorized operator in such way as to be good against all the world, including the lessor; that the operation thereof must be conducted under the...