Bostic v. Connor

• Decision Date: 15 June 1988
• Docket Number: No. 87-455,87-455
• Citation: 37 Ohio St.3d 144,524 N.E.2d 881
• Parties: BOSTIC, Appellee, v. CONNOR et al.; Bob's Truck Service, Inc., Appellants.
• Court: Ohio Supreme Court

Page 144

37 Ohio St.3d 144

524 N.E.2d 881

BOSTIC, Appellee, v. CONNOR et al.; Bob's Truck Service, Inc., Appellants.

No. 87-455.

Supreme Court of Ohio.

Submitted Nov. 19, 1987.

Decided June 15, 1988.

Syllabus by the Court

1. Whether someone is an employee or an independent contractor is ordinarily an issue to be decided by the trier of fact. The key factual determination is who had the right to control the manner or means of doing the work. (Gillum v. Indus. Comm. [1943], 141 Ohio St. 373, 25 O.O. 531, 48 N.E.2d 234, approved and followed.)

2. It is within the sound discretion of a trial court to refuse to admit proposed jury instructions which are either redundant or immaterial to the case.

3. While testimony on an ultimate issue to be decided by the trier of fact is not per se inadmissible in Ohio, it is within the sound discretion of a trial court to refuse to admit the testimony of an expert witness on an ultimate issue where such testimony is not essential to the jury's understanding of the issue and the jury is capable of coming to a correct conclusion without it. (Evid.R. 702 and 704, construed.)

4. Where a jury, during its deliberations, requests a written copy of the trial court's instructions, and the court, out of the presence of the parties, communicates with the jury concerning the court's instructions but only refuses to provide a written copy of the instructions, the error committed by the court in communicating ex parte with the jury is harmless error in the absence of prejudice to the parties. (State v. Abrams [1974], 39 Ohio St.2d 53, 68 O.O.2d 30, 313 N.E.2d 823, approved and followed.)

The decedent, Jackie Bostic, earned his living by hauling freight as an independent trucker. On March 16, 1981, Bostic agreed to transport a load of steel for appellant, Bob's Truck Service, Inc. The terms of the lease agreement were that Bostic would haul the steel from Middletown, Ohio, to Mount Clemens, Michigan, in return for sixty-three percent of the gross revenue received by appellant for the delivery. Bostic agreed to use his own tractor and appellant's trailer to deliver the steel.

On March 17, 1981, Bostic set out from Middletown. He drove as far as Findlay, Ohio, before his tractor broke down. Leaving the trailer and its cargo in Findlay, he had his tractor towed back to Middletown. On March 18, 1981, Bostic discussed the completion of the delivery with David Rose, who was then appellant's Director of Safety and Compliance. They agreed that Bostic could use one of appellant's tractors to finish the trip in return for receiving only twenty-six percent of the gross revenue for that portion of the haul from Findlay to Mount Clemens. Bostic would continue to receive sixty-three percent of the gross revenue for the Middletown to Findlay portion of the journey. Additionally appellant provided Bostic with two credit cards with which to purchase gasoline or make repairs, if necessary. Rose instructed Bostic to return to Middletown immediately after making the delivery, without soliciting a return load.

Bostic had previously been employed by appellant as a driver. Bostic discussed with Rose the possibility that he might once again become a full-time employee of appellant. Rose told him that his company was hiring drivers, but Bostic did not commit himself to becoming a full-time employee at that time, stating that he wanted to discuss the matter with his wife first.

Bostic took the tractor home with him, but did not leave the next day due to bad weather. On March 20, 1981, Bostic resumed his journey. He picked up his trailer in Findlay and resumed driving towards Mount Clemens on Interstate 75. He died shortly thereafter when his truck veered off the highway and into the Maumee River.

Jason Bostic, the decedent's minor son, through his natural mother, filed a claim for death benefits with the Bureau of Workers' Compensation, contending that his father was appellant's employee at the time of his death. The district hearing officer allowed Jason's claim, and the board of review affirmed this decision. The Industrial Commission affirmed the order of the regional board.

Appellant appealed the Industrial Commission's decision to the Court of Common Pleas of Lucas County. The trial court denied the parties' cross-motions for summary judgment. During the trial by jury, the trial court also overruled appellant's motion for a directed verdict and refused to admit the testimony of appellant's expert witness. The jury rendered a verdict in favor of appellee and judgment was entered upon the verdict. The trial court subsequently denied appellant's motion for a new trial predicated on an ex parte communication between the court and jury.

The court of appeals unanimously affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Casper & Casper and Douglas W. Casper, Middletown, for appellee.

Eastman & Smith, John T. Landwehr and Thomas J. Gibney, Toledo, for appellants.

LOCHER, Justice.

This appeal presents us with an issue that often arises in workers' compensation cases: whether the relationship of someone to an employer is that of master-servant or independent contractor. Because an independent contractor is not an employee for purposes of workers' compensation law, the resolution of this question determines the employer's obligation to contribute to, and the applicant's eligibility for benefits from, the State Insurance Fund. In this appeal, we are first called upon to decide whether the trial court erred in submitting this issue to the jury.

Whether someone is an employee or an independent contractor is ordinarily an issue to be decided by the trier of fact. The key factual determination is who had the right to control the manner or means of doing the work. In Gillum v. Indus. Comm. (1943), 141 Ohio St. 373, 25 O.O. 531, 48 N.E.2d 234, this court set forth the following test in paragraph two of the syllabus:

"Whether one is an independent contractor or in service depends on 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." See, also, Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335; Richardson v. Mehan (1982), 69 Ohio St.2d 52, 23 O.O.3d 90, 430 N.E.2d 927; Behner v. Indus. Comm. (1951), 154 Ohio St. 433, 43 O.O. 360, 96 N.E.2d 403, paragraphs one and two of the syllabus; Firestone v. Indus. Comm. (1945), 144 Ohio St. 398, 29 O.O. 570, 59 N.E.2d 147, paragraph one of the syllabus; Indus. Comm. v. Laird (1933), 126 Ohio St. 617, 186 N.E. 718, paragraph four of the syllabus; and 1 Restatement of the Law 2d, Agency (1958) 12, Section 2. Cf. Whittington v. New Jersey Zinc Co. (C.A. 6, 1985), 775 F.2d 698; and Western Express Co. v. Smeltzer (C.A. 6, 1937), 88 F.2d 94.

The determination of who has the right to control must be made by examining the individual facts of each case. The factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes travelled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts. See Restatement, supra, at 485-486, Section 220; Young, Workmen's Compensation Law of Ohio (2 Ed.1971) 33, Section 3.3; and Gillum, supra, 141 Ohio St. at 380-382, 25 O.O. at 534-535, 48 N.E.2d at 237-238.

In the case sub judice, the trial court denied the cross-motions for summary judgment and submitted the issue of who had the right to control to the jury. Summary judgment is appropriate when the following factors have been established:

" * * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. See, also, Civ.R. 56(C); and Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

While the material facts of this case are not in dispute, appellant argues that the trial court should have found Bostic to be an independent contractor as a matter of law.

Generally, where the evidence is not in conflict or the facts are admitted, the question of whether a person is an employee or an independent contractor is a matter of law to be decided by the court. See Schickling v. Post Publishing Co. (1927), 115 Ohio St. 589, 155 N.E. 143, syllabus. However, the issue becomes a jury question where the claimant offers some evidence that he was an employee rather than an independent contractor. See Laird, supra, at paragraph three of the syllabus. As set forth in O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896, paragraph four of the syllabus:

"It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue * * *." (Emphasis sic.)

Because appellee submitted sufficient evidence to permit reasonable minds to differ on the issue of who had the right to control the manner or means of doing the work, we find that the trial court did not abuse its discretion in submitting the issue to the...