Daniels v. MacGregor Co.

• Decision Date: 21 April 1965
• Docket Number: No. 38914,38914
• Parties: , 31 O.O.2d 141 DANIELS, Appellant, v. MacGREGOR CO., Appellee.
• Court: Ohio Supreme Court

Page 89

2 Ohio St.2d 89

206 N.E.2d 554, 31 O.O.2d 141

DANIELS, Appellant, v. MacGREGOR CO., Appellee.

No. 38914.

Supreme Court of Ohio.

April 21, 1965.

Syllabus by the Court

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 anemployee 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 damage 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.)

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 had 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 far 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 his 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.

James L. O'Connell and Lindhorst & Dreidame, Cincinnati, for appellant.

Rendigs, Fry, Kiely & Dennis and John A. Kiely, Cincinnati, for appellee.

TAFT, Chief Justice.

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 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.

Thus, in Bobik v. Industrial Commission (1946), 146 Ohio St 187, 64...