Roberts v. Rumpke

29 N.E.2d 221, 65 Ohio App. 22, 31 Ohio Law. Abs. 213, 17 Ohio Op. 454, 1940 Ohio App. LEXIS 1008

• Court: Ohio Court of Appeals
• Decided: January 29, 1940
• Docket: 5709
• Status: Published

Opinions

OPINION

By ROSS, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County, Ohio.

The sole question presented is whether the defendants employed three or more men, thus requiring compliance with the provisions of the Workmen’s Compensation Act.

The plaintiff was an employee of the defendants, a partnership, and was injured during and by reason of his employment.

For some considerable time previous to the injury of the plaintiff, William Rumpke owned a coal yard and wrecking and scrap iron business. When the United States Government Building in Cincinnati was razed, a large quantity of stone became available. William Rumpke, Barney Rumpke, and James Coffee then entered into a partnership for the purpose of securing the large stones used in the Government Building, hauling them to Rumpke’s yard, carving them, and selling them as tomb stones and grave markers. A small building was erected adjoining the coal yard and certain polishing and cutting machinery set up therein. Each of the partner’s contributed a certain amount of labor and equipment in hauling the stones, and was given a credit in what was called a “capital fund”.

James Coffee was put in active charge of the actual work upon the stones. William Rumpke delivered the stones in trucks, usually used in his coal yard and wrecking business. Barney Rumpke kept the books of the partnership. The plaintiff, after the monument business-started, was regularly employed in the surfacing of the stones, and upon the trucks of William Rumpke, in delivering same.

There is evidence that in September, 1937, a man by the name of Elmore was employed by the partnership and worked intermittingly until the date of Robert’s injury in November, 1937. The evidence does not establish that he was regularly employed.

A man by the name of Stith was employed from time to time as a salesman. It appears that when he sold a monument he received a commission from the partnership. He accepted regular employment after the injury to Roberts. He had a drawing account for necessary expenses. The evidence fails to show that he could be considered an employee regularly employed.

Alliston Sweet was employed by William Rumpke as a driver for his trucks. He was not an employee of the partnership. The evidence develops that while William RumpKe, as an independent contractor was employed from time to time to deliver monuments for the partnership, that other independent contractors were also used by the partnership for delivering monuments and that William Rumpke was not regularly employed by the partnership for this purpose. His employee Sweet would, therefore, not qualify as an employee by virtue of the provisions of §1465-61, GC. If the independent contractor was not regularly employed, his employee would not be regularly employed.

Reference to the books kept by the partnership shows that other persons worked occasionally for the partnership, and that those hereinbefore mentioned worked in the capacities, for the periods and in the manner noted.

Roberts, the plaintiff, was injured' when in company with Sweet and Coffee he was unloading a stone hauled on William Rumpke’s truck to a customer in Kentucky.

From what has been said it appears, therefore, that the plaintiff was the only employee regularly employed by the partnership.

It becomes unnecessary to determine the constitutionality of §1465-60, GC, providing that a member of a partnership performing manual labor for the partnership shall be considered an employee therefore for the purposes of Workmen’s Compensation.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

HAMILTON, PJ., concurs. MATTHEWS, J., dissents.