Drexler v. Labay, 32286

• Decision Date: 18 April 1951
• Docket Number: No. 32286,32286
• Citation: 98 N.E.2d 410,155 Ohio St. 244,44 O.O. 254
• Parties: , 44 O.O. 254 DREXLER v. LABAY et al.
• Court: Ohio Supreme Court

Page 244

155 Ohio St. 244

98 N.E.2d 410, 44 O.O. 254

DREXLER v. LABAY et al.

No. 32286.

Supreme Court of Ohio.

April 18, 1951.

Syllabus by the Court.

1. To constitute the relationship of employer and employee under the Workmen's Compensation Act there must be a contract of hire express or implied; and it is impossible to have such a 'contract for hire' without an obligation that the person denominated the employer pay the person employed. (Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661, approved and followed.)

2. Ordinarily, where one person renders services at another's request and there is no express agreement relative to payment therefor, the person rendering the services may recover for the reasonable value thereof.

3. In such an instance, the trier of the facts may fairly infer, as a matter of fact, that a contract existed between the parties under which one was to pay a reasonable amount for the services rendered by the other.

4. Where there are additional facts and circumstances which make it appear more reasonable that the parties did not understand that they sustained to each other such contractual relation, such facts and circumstances may repel any inference of an agreement to pay for such services.

5. Where one party requests another party to render assistance for some purpose of interest or advantage to the first party and the first party furnishes to the second party a tool to use in the performance of such assistance, the first party is under a duty to the second party to use ordinary care either to have such tool in a reasonably safe condition for use by the second party in a manner consistent with the purpose of the assistance to be given or to warn if such tool is not in such safe condition.

6. One, who renders assistance to another at the request of the latter's servant or employee, is not a volunteer, where the servant or employee is authorized to call on others for such assistance.

Plaintiff instituted an action to recover from defendant for the loss of his eye, claimed to have been proximately caused by defendant's negligence.

Plaintiff's father had employed defendant to replace the roof on a small building, which had previously been erected for use by plaintiff in raising rabbits and chickens. In doing this, defendant's large truck, equipped with a crane and winches, became mired in soft ground. Turner, the employee of defendant in charge of the truck, sought to extricate the truck by the use of wire cable and a power winch on the truck.

As an anchor for the cable, Turner used a steel shaft. This shaft and a metal sledge were furnished by defendant as a part of the regular equipment of the truck. The head of the steel shaft had been severely battered and extended to approximately twice the diameter of the shaft.

Turner drove the shaft into the ground with the sledge and attached the cable to the shaft. However, when the motor power was applied to the winch and cable, the shaft was pulled out of the ground.

Turner then asked plaintiff, a boy of 16, to strike the steel shaft with the sledge in order to keep the shaft in the ground while tension was applied on the cable by the power winch. Plaintiff did as requested. The tension on the cable kept the steel shaft vibrating and chattering and difficult to strike squarely with the sledge.

While plaintiff was striking this shaft, as requested by Turner, a particle of the battered end flew off and entered plaintiff's eye.

Turner had specific instructions from the defendant to get help on the job if needed and not to call in for such help unless he had to.

Plaintiff's father testified that, when he discussed the job to be done with Turner prior to the time that defendant sent Turner out to do the job, he asked if Turner could give him some estimate of what the job would cost, and that Turner said it should not cost more than $5, based upon his previous experience. However, plaintiff's father testified that Turner did not give him any price for doing the job at that time. Plaintiff's father testified further that, while Turner was doing the work, nothing was said as to how much the job would cost, but that, after the work was completed, Turner said that the job would cost plaintiff's father $12.

Turner testified that, when he got back from doing this job, he had a talk with defendant's son, who was apparently in charge of the business at that time, and was asked approximately how long it took him. He said that it took him approximately three and one-half hours, during part of which he was stuck. The defendant's son then asked if Turner thought $12.50 would be too much for the job and Turner said he did not. Turner further stated that he told the defendant's son, when asked how he got out when struck that he got out by the help of plaintiff and plaintiff's father who 'gave me a hand.' He testified further that he did not say anything to defendant's son about hiring plaintiff or his father.

Plaintiff's father testified that the whole job took about three hours and that about two of those hours involved an effort 'to get the truck out of the stalled position in the mire.'

When the truck became mired, Turner not only asked plaintiff to strike the steel shaft with the sledge, but also asked plaintiff's father to help in getting the truck out by holding a piece of timber in position at the rear wheels so that, if the truck got out of the mire, it would come up on the timber.

Plaintiff's father did not pay the $12, which Turner told him that the job would cost, until between three or four months later. When he paid, he received a statement from the defendant marked 'paid' and describing the charge made as follows: 'Put up roof on chicken house--$12.'

Plaintiff testified that nothing was said, at the time he was asked by Turner to strike the steel shaft, in respect to plaintiff being paid for rendering that service, that he neither was paid nor expected to get paid, and that what he did was done without the expectation of getting any recompense.

There was no evidence that anything was said tending to indicate that plaintiff was to be paid anything for what he did.

The trial court arrested the case from the jury and rendered jurdgment for the defendant.

That judgment was affirmed by the Court of Appeals. The case is before this court on appeal, a motion to certify having been allowed.

Brouse, McDowell, May, Bierce & Wortman, Akron, for appellant.

Englebeck, Cotton & Kaufmann, Akron, for appellee.

TAFT, Judge.

The Court of Appeals affirmed the judgment of the Common Pleas Court on the ground that plaintiff was an employee of defendant under the Workmen's Compensation Act, so that plaintiff's action was barred by Section 1465-70, General Code, prohibiting any action 'against an employer' complying with certain provisions of the act for 'any injury * * * of an employe arising out of his employment by such employer'.

In Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661, the syllabus reads in part:

'3. To constitute the relationship of employer and employee under the Workmen's Compensation Law there must be a contract of hire express or implied. * * *

'5. It is impossible to have a 'contract for hire' without an obligation that the person denominated the employer pay the person employed.'

The Coviello case involved a construction of Section 1465-61(2) defining the word 'employee' in the Workmen's Compensation Act. That statutory language has not been changed.

This raises the question as to whether there was a contract for hire between the plaintiff and the defendant under which the defendant was obligated to pay the plaintiff anything. If there was not, then plaintiff's action is not barred by Section 1465-70, General Code, because the injury, for which recovery is sought, was not an 'injury * * * of an employe,' within the meaning of that section.

Ordinarily, where one person renders services at another's request and there is no express agreement relative to payment therefor, the person rendering the services may recover for the reasonable value thereof. In such an instance, recovery is allowed because the trier of the facts may fairly infer, as a matter of fact, that a contract existed between the parties under which one was to pay a reasonable amount for the services rendered by the other. Columbus, Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St. 104, 114, 61 N.E. 152. Obviously, where there are additional facts and circumstances which make it appear more reasonable that the parties did not understand that they sustained to each other such...