Dewitt v. State

• Decision Date: 13 November 1923
• Docket Number: 17782
• Citation: 141 N.E. 551,108 Ohio St. 513
• Parties: Dewitt Et Al. v. The State, Ex Rel. Crabbe, Atty. Genl.
• Court: Ohio Supreme Court

141 N.E. 551

108 Ohio St. 513

Dewitt Et Al. v. The State, Ex Rel. Crabbe, Atty. Genl.

No. 17782

Supreme Court of Ohio

November 13, 1923

Workmen's Compensation-Employer of employe of independent contractor-Section 1465-61, General Code-Noncontributing principal or independent contractor liable when-Constitutional law- Validity of classification of employers-Constitutionality of penalty upon nonpayment of award-Section 1465-74, General Code.

l. A person, himself employing five or more workmen regularly, is considered as the employer of the employe of an inde- pendent contractor within the meanIng of paragraph 3 of section 1465-61, General Code, where the latter also employs five or more workmen regularly and has failed to pay into the fund or to pay compensation direct, unless such employe or his legal representative or beneficiary has elected, after injury or death, to regard the independent contractor as the employer.

2. The legislature had ample power, under the provisions of Section 35, Article II, of the Ohio Constitution, to enact paragraph 3 of Section 1465-61, General Code, classifying and defining employees of an Independent contractor as employees of the principal contractor. Such paragraph is a valid constitutional law.

3. The provision of Section 1465-74 of the General Code, that when an injured employe, whose employer has failed to comply with the Workmen's Compensation Act, or his dependent, has filed application for compensation in place of filing a civil action, and compensation has been awarded by the Industrial Commission, "the amount of the ComPensation which said board may ascertain and determine to be due to such injured employe, or to his dependents in ease death has ensued, shall be paid by such employer to the person entitled thereto within ten day's after receiving notice of the amount thereof as fixed and determined by the beard; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against ouch employer in the amount so ascertained and fixed by the board which with an added penalty of fifty per centum, may be recovered in an action In the name of the state for the benefit of the person or Persons entitled to the same," is a valid and constitutional enactment, not repugnant to Section 1 of Article XIV of the Federal Constitution, nor to Section 16 of Article I of the Bill of Rights of the Ohio Constitution.

[Note.-Attention is directed to the fact (see page 535, post) that Marshall, C. J., Wanamaker, Robinson, Jones, Matthias, Day and Allen, JJ., concur in propositions 1 and 2 of the syllabus; that Wanamaker and Allen, JJ., being of opinion that Section 1465-74, General Code, is constitutional, concur in proposition 3 of the syllabus, which proposition is the law of the cue under Section 2, Article IV, of the Ohio Constitution; and that Marshall, C. J., Robinson, Jones, Matthias and Day, JJ., dissent from proposition 3 of the syllabus.

This was an action brought by the state, on the relation of the Attorney General, against Grant DeWitt, Jack DeWitt and Howard DeWitt, to recover all award granted in favor of Mrs. Hoyt M. Hurley by the Industrial Commission of Ohio.

The facts appearing in the second amended petition are substantially as follows: On November 27, 1918, one John D. Harris received injuries which it is alleged were sustained while engaged in baling hay for the DeWitts. These injuries culminated in his death on December 6, 1918. On January 28, 1919, Mrs. Hurley, then his widow, filed her application with the Industrial Commission for compensation. After due notice of the time and place of bearing bad been given defendants, the widow Was awarded $4,992 as compensation, and $192.90 additional for medical and burial expenses. An application for a rehearing was made by the defendants and denied, and in May, 1919, a certified copy of the findings and order of the Commission was served on the defendants, Said second amended petition contained two causes of action. The first cause of action averred that the DeWitts were employers having five or more workmen regularly employed in their business, and had neglected to comply with the provisions of the Workmen's Compensation Act by becoming subscribers to the state insurance fund or by electing to pay compensation direct to their injured employees; that Harris was injured while in the employ of the defendants, under a contract of hire, when engaged in baling hay and straw in the course of such employment. The second cause of action is substantially the same as the first, except that in it more specific allegations were made, involving the employment of Harris by an independent contractor.

The second cause of action states that at the time of the injury defendants were engaged in the hay and straw business, which involved the buying, baling, marketing and selling thereof, in which connection defendants operated a baler; that also at the same time defendants had entered into contracts with other persons by which they were to bale hay and straw for defendants and hire the necessary employees and labor therefor. This cause of action proceeds as follows:

"That on and prior to said 27th day of November, 1918, said defendants had rented a baler and had entered into a contract with one Albert Watson, whereby said defendants were to furnish said rented baler and keep the same in repair, and the said Watson was to bale hay and straw for said defendants and procure the necessary employees and labor to operate said baler in baling hay and straw in connection with the said business of said defendants. That on or about the said 27th day of November, 1918, John D. Harris was in the service of the said Albert Watson as aforesaid, under a contract of hire for labor. That on and prior to said date the said John D. Harris under said contract performed services as a laborer in connection with the baling of hay and straw as aforesaid, and was on said date performing labor and services in connection therewith."

This second cause of action further alleges that both the DeWitts and Albert Watson, the independent contractor, had in their respective services five or more workmen regularly, and that neither had paid into the state insurance fund nor had either elected to pay compensation direct to their injured or killed employees, and that the DeWitts had failed and neglected to comply with the Workmen's Compensation Law by becoming a subscriber to the state insurance fund; that while engaged in the course of his employment for Watson, Harris was carrying gasoline near a burning torch used in connection with the operation of the baler, and that the gasoline became ignited from the torch, burning Harris so severely that it caused his death.

Alleging that the defendants, the DeWitts, had failed and refused to pay the amount awarded by the Commission, as aforesaid, the state brought this action to recover not only the $4,992, the amount of the award, but also a penalty amounting to $2,496, being 50 per cent. of the amount of the award. The state also sought to recover the sum of $192.90, awarded for medical and funeral expenses. The defendants filed a general demurrer to the &st and second causes of action of the second amended petition, which the trial court overruled. The defendants Grant DeWitt and Jack DeWitt then answered. Their answer specifically admitted that at the time of injury Harris was in the employ of Watson, under a contract of hire, performing service and labor in connection with the baling of straw, and that he was injured as stated in the petition. By their general denial they deny that either they or the independent contractor, Watson, employed five or more workmen.

During the course of the trial, plaintiff asked that the action be dismissed as to Howard DeWitt, which was done. At the close of the evidence the trial court instructed the jury as follows:

"I instruct you that there is no evidence in this case which under the law would warrant you in rendering a verdict in favor of the plaintiff on the second cause of action set out in the plaintiff's second amended petition, and I direct you to return a verdict in favor of the defendants on the second cause of action."

Thereafter the jury returned a verdict on the issues joined On the first cause Of action in favor of the defendants,

On error to the Court of Appeals, that court reversed the judgment of the trial court, because it withdrew the second cause of action from the con- sideration of the jury. Error is now prosecuted to this court by the defendants Grant DeWitt and Jack DeWitt.

Messrs. Hidy & Sanderson, for plaintiffs inerror.

Mr. C. C. Crabbe, attorney general; Mr. Ray R. Maddox, prosecuting attorney; Mr. R. R, Zurmehly and Messrs. Rankin & Rankin, for defendant in error.

JONES J.,

This case is an exemplification of our recent holding in Pittsburg Coal Co. v. Industrial Commission, ante, 185, 140 H. E., 684 which accords to the employer under the Workmen's Compensation Act an adequate remedy by due course of law whereby he may contest all jurisdictional facts necessary to be determined by the Commission before making an award in a suit brought against the employer for the amount of the award under Section 1465-74, General Code. Here the suit was brought by the state against the employers, present plaintiffs in error. The employers are defending and contesting two jurisdictional questions: First, the determination of the issue whether Harris was their employe or the employe of the independent contractor; and, second, if an employe of the independent contractor, whether a statute would be constitutionally...