Campbell v. Central Terminal Warehouse

Per Curiam.

The facts in this cause are nearly identical to those in Daniels v. MacGregor Co. (1965), 2 Ohio St. 2d 89, wherein this court held:

“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 of means of performing the work, said 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 Work *175 men’s Compensation Act, he will not he 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.”

Clearly, under Daniels, appellant, was an employee of Central. Hour Man hired appellant to work for Central. Central controlled the manner and means of appellant’s work, and had complied with the requirements of the Workers’ Compensation Act with respect to its employees.1 However, appellant would have this court overrule Daniels by dispensing with the right-to-control test as applied to this cause and hold that, under R. C. 4123.01(A), appellant was an employee only of Hour Man.

A majority of this court is not convinced that the result in Daniels should be overruled. The holding has remained unchanged for approximately 13 years and it is significant that the General Assembly has chosen not to alter the result obtained in Daniels. See Seeley v. Expert, Inc. (1971), 26 Ohio St. 2d 61, 72-73; Wetzel v. Weyant (1975), 41 Ohio St. 2d 135, 137.

Furthermore, we find that under the express provisions of R. C. 4123.01 appellant was an “employee” of Central. That section provides, in relevant part:

“(A) ‘Employee,’ ‘workmen’ or ‘operative’ means:

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■ “ (2) Every person in the service of any person, firm, or private corporation * * * under any contract of hire, express or implied * *

The appellant clearly was “in the service of’’ Central. He wás referred by Hour Man to perform tasks as requir *176 ed by Central. Moreover, there existed an implied contract, of hire between Central and appellant, whereby appellant in effect authorized Hour Man to offer his services for hire, and Central, by approving the referral, accepted appellant’s offer. See Daniels, at page 94. Although Central did not directly pay appellant, Central did pay Hour Man a certain sum which covered the reimbursement of appellant for his services.

We conclude, therefore, that appellant was an employee of Central at the time of his injury, and thus was precluded from bringing suit against Central in this cause.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Herbert, W. Brown, P. Brown, Sweeney and Locher, JJ., concur. Leach, C. J., and Celebrezze, J., dissent.

Ut should be noted .that - although Central did not make any direct, payments into the state insurance fund on behalf of appellant, Central was in compliance with the provisions of R. C. 4123.35 requiring every employer to pay into the fund the amount of premium fixed by the Industrial Commission.

Also noteworthy, is the fact that part of the. payments made by Central to Hour Man for temporary help took.into consideration the contributions Hour Man had made into the Workers’ Compensation Fund on behalf of appellant.