Montgomery v. Bd. of Co. Commrs. , 25 Ohio App. 440 ( 1927 )

The plaintiff in this court was plaintiff in the trial court and filed his petition on December 29, 1923, to recover damages for personal injuries suffered by him on July 21st of that year. A demurrer was sustained to the second amended petition, and, the plaintiff not wishing to plead further, the action was dismissed at his costs.

It appears from the averments of the second amended petition that the defendant has maintained for many years in the court house in the city of Sandusky a tower clock located some 75 feet above the ground, and so constructed as to indicate the time on each of four illuminated faces.

On March 29, 1923, the plaintiff entered into a written contract with the defendant, the material portions of which are set forth in the second amended petition. This contract contains, as averred, the following provision:

"That the said party of the second part agreed with the party of the first part, for and in consideration of the stipulation, covenants, and agreements herein contained and of the payment hereinafter mentioned to be made by the party of the second part, the said party of the first part does hereby covenant and agree to keep in repair the tower clock in the court house for a period of 1 year commencing April 1, 1923, for the sum of $50."

The contract, by other provisions, obligated the defendant to pay the plaintiff the amount stipulated upon his compliance with its terms. The pleading avers that in order to comply with the contract it was necessary for the plaintiff to reach the clock by means of stairways and ladders, and to pass over certain floors, and that the floor near the clock was defective, and unsafe, and unfit for plaintiff to work upon, and the defendant had negligently failed to make it strong enough to support a man who might be required to work thereon. The plaintiff avers that the defendant negligently failed to inspect the tower floor, and to have the tower lighted, and that the unsafe condition of the floor was not observable, but was well known to the defendant, and that defendant failed to provide him with a safe place in which to work, and failed to comply with lawful requirements for the protection and safety of its employes. Plaintiff further avers that he was without fault, but while performing his work the floor gave way and he fell a distance of about 35 feet to a lower floor, and was severely injured.

By the statutes of Ohio, counties are made subject to the provisions of the Workmen's Compensation Law (General Code, Section 1465-37 et seq.). The injury having occurred and the action having been brought prior to the time the amendment to Article II, Section 35, of the Constitution of Ohio (see 110 Ohio Laws, 631), became effective, the plaintiff contends that, under the provisions of Section 1465-76, General Code, he is entitled to recover damages by reason of defendant's failure to comply with lawful requirements for the protection and safety of employes. The defendant contends that the relation of employer and employe did not exist between the parties to this action, but that the plaintiff was an independent contractor, for which reason the Workmen's Compensation Law had no application to the case.

It is apparent from the averments of the second amended petition that the defendant did not reserve any control over the plaintiff, or the work to be performed by him, but only the right to approve the materials and the result of the work. The means and methods which the plaintiff should employ in repairing and regulating the clock and complying with the contract were all left to him. It seems clear that he might use the appliances already there, or furnish others of his own, if he saw fit. We are satisfied that the relation of master and servant did not exist between the parties, but that the plaintiff by the terms of his contract became an independent contractor, and nothing more. It is, of course, true that the provisions of the Workmen's Compensation Act can have no relation to a case where the plaintiff is not an employe.

It is insisted, however, that the duty of a master to provide a reasonably safe place in which to work cannot be delegated to an independent contractor so as to relieve the master from responsibility for an injury to an employe resulting from such neglect of duty. Counsel for plaintiff, among other authorities to sustain this proposition, rely on Trainor v. Philadelphia R.Rd. Co., 137 Pa., 148, 20 A. 632. No doubt can arise as to the existence of this principle, but it does not protect the independent contractor himself. By the provisions of Section 1465-61, General Code, par. 3, a person in the service of an independent contractor may under certain circumstances be treated as the employe of the original contractor, but the terms of the statute do not provide a remedy for the independent contractor himself, and it therefore results that the plaintiff has no right of action under the terms of the Workmen's Compensation Law.

At common law, boards of county commissioners were not liable for injuries resulting from negligence. Liability has been created in certain cases by the terms of Section 2408, General Code, but the provisions of that section have no application to the present case.

We find no error in the lower court sustaining the demurrer and dismissing the petition.

Judgment affirmed.

WILLIAMS and LLOYD, JJ., concur.