
    Wallingford et al. v. Slattery.
    (Decided June 24, 1935.)
    
      Messrs. Ernst, Cassatt <& Cottle and Messrs. Peck, Shaffer & Williams, for plaintiffs in error.
    
      Mr. Leo J. Brumleve, Jr., for defendant in error.
   Hamilton, J.

This case was an appeal from the finding of the Industrial Commission of Ohio denying on jurisdictional grounds compensation to the claimant, Sarah Slattery, for the death of her husband, Thomas A. Slattery.

In the answer the regular employment and death were admitted. The denial of compensation and the widowhood of claimant were also admitted. Defendants denied generally and specifically that they were engaged “in business” within the meaning of Section 1465-60, General Code of Ohio, and, contended therefore, that they were not amenable to the provisions of the Workmen’s Compensation Act.

The defendants did not pay into the State Insurance Fund, and are, therefore, not protected from liability if the claim comes within the act.

The case was tried to a jury, which returned a verdict finding the claimant entitled to compensation.

A second defense was pleaded to the effect that the claimant had filed a prior action for wrongful death, and, therefore, should not be permitted to maintain this action. As to this second defense it is sufficient to say that the prior action by the administratrix constituted no bar to presenting the claim to the Industrial Commission as a dependent.

The real questions in the case were whether or not the defendants were engaged “in business” within the meaning of the Compensation Act; and, if so, did they employ three or more workmen or operatives regularly in that business under any contract of hire.

The record discloses that the defendants, plaintiffs in error here, were the joint owners by gift or devise of about 60 pieces of property consisting of apartments, tenants’ houses, and business property. They employed Carl S. Rankin to manage the properties, to rent the same, look after repairs and service thereto, collect the rents, and remit to the defendant owners. Rankin was paid by what he calls an annual retainer. He was a lawyer. The defendants furnished him with an office, telephone, and stenographer. He employed Slattery as janitor and elevator man. He employed three other men in other properties for service to the tenants and to the property, paying some with free rent and paying others according to the work done, the character of the work being the removal of garbage, cutting grass, and making small repairs. Rankin employed a stenographer, five-sixths of her wages being paid by the defendants. The business was all operated under the name and style of “The Longworth Estate.” The defendants were the owners of the property of the Longworth Estate.

The trial court applied these undisputed facts to the law, and in substance charged the jury that the defendants were engaged “in business.” This is the important ground of error stressed and requires first consideration.

“Business” is a word of large and rather indefinite import. It must be considered that the legislature intended the word to be used in its ordinary sense, since it does not define its meaning as it does many other words used in the Workmen’s Compensation Act.

Bouvier defines “business” as: “That which occupies the time, attention, and labor of men for the purpose of livelihood or profit, but it is not necessary that it should be the sole occupation or employment.It embraces everything about which a person can be employed.” Citing cases.

Many cases are cited in the briefs, but they are of little aid here, as each presents a different state of facts. Each case must be determined on its own facts.

In this case, where the defendants own sixty pieces of rental property of widely different character requiring constant attention in keeping them in repair, renovating them, furnishing janitor service and elevator service, securing tenants, paying taxes, collecting rents, securing the profits, and engaging agents and employees to perform the same, and all operated as a designated estate, we conclude and hold that the defendants were engaged in business within the meaning of the compensation act, and that the trial court did not err in so charging the jury.

The question for the jury was whether or not the defendants employed three or more workmen. The jury under the charge of the court determined that they did, and it was justified in so doing.

Finding as a matter of law on the undisputed evidence that the defendants were engaged “in business” within the meaning of the compensation act, we find no error in the special charges complained of, nor in the general charge.

We find no prejudicial error in the record, and the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Ross, P. J., and Matthews, J., concur.  