Roberts v. Rumpke , 65 Ohio App. 22 ( 1940 )

In my opinion, the analysis of the evidence made by the majority shows that the defendants employed three employees "regularly in the same business," as that phrase is construed inState, ex rel. Bettman, v. Christen, 128 Ohio St. 56,190 N.E. 233. The fact that the employment was not continuous is not determinative of the question of whether they were employed "regularly in the same business."

My independent consideration of the evidence leads me to the same conclusion — that there were three employees without counting the partner who regularly performed manual labor.

By Section 1465-60, General Code, it is provided that in determining whether a partnership employs three or more "any member of a partnership * * * who regularly performs manual labor" shall be counted.

It is urged that this provision is unconstitutional. We are cited to Goldberg v. Industrial Commission, 131 Ohio St. 399,3 N.E.2d 364, which held that the provision in Section 1465-68, General Code, which attempted to extend the provisions of the Workmen's Compensation Act to "any member of a partnership * * * who is paid a fixed compensation for services rendered to such partnership" was unconstitutional. The court held that Sections26 and 35 of Article II of the Constitution of Ohio conferred power upon the Legislature to provide compensation for employees, but not for employers, and that a member of a partnership was not a "workman" or "employee" in the constitutional sense "requiring an award of additional compensation in case of violation of a specific requirement," or generally, to provide compensation for employee-members of a partnership.

No partner is claiming compensation in this case. It is undisputed that the plaintiff was an employee, and bore no other relation to this partnership.

While the Constitution limited to employees the power of the Legislature to provide compensation, at no place did it limit its power to provide compensation for all employees. Whatever exclusion has been made by the Legislature was the result of a self-imposed limitation based on its conception of sound public policy. It had full constitutional power to include a single employee within the benefits of the law. Having such power, any method it saw fit to adopt in determining the minimum class to be excluded was within its power.

Certainly, a provision including a partner who worked regularly alongside of employees, in determining the number to bring into operation the law, is in no sense unreasonable. By working with his employees, he subjects them to as great a hazard as would an additional employee, who was not also a partner. And the fact that he could not be awarded compensation out of the fund is no reason for excluding him in the computation to determine the applicability of the statute as to employees, who are not partners.

In my opinion the partner who worked and was paid wages should be included in determining whether the requisite number existed to bring the statute into operation.

For these reasons, I dissent from the conclusion reached by my associates.