
    Industrial Commission of Ohio et al. v. Watterson.
    (Decided November 25, 1935.)
    , Mr. John W. Bricker, attorney general, Mr. R. R. Zurmehly and Mr. Stewart S. Cooper, for plaintiff in error the Industrial Commission.
    
      Mr. Clarence M. Smith, for plaintiff in error William Weierich.
    
      Mr. Joseph Schwarts and Mr. B. Wm. Heidkamp, for defendant in error.
   Eoss, P. J.

This case comes into this court on error to the Court of Common Pleas of Hamilton county, wherein the plaintiff, John J. Watterson, was by the judgment of that court permitted participation in the Workmen’s Compensation Fund.

The plaintiff in error, Weierich, was a self-insurer. The only question presented by the record is whether or not the plaintiff below was in his employ.

Weierich, it appears, operated a number of gasoline filling stations at various locations in Hamilton county. Among these was one located at Eavine and McMillan streets in the city of Cincinnati, where he employed two men, Roll and Hasselback, who were permitted by Weierich to operate a tire and battery business in a small building on the filling station location. This business was entirely separate and distinct from that of the filling station. The tire and battery business had at one time been abandoned by Weierich, but was resumed as an independent affair under the management of Roll and Hasselback, because it became evident that the filling station was losing trade because it could not give tire and battery services to its customers.

Soon after the resumption of this business at the station it became apparent that Roll and Hasselback needed assistance to properly meet the demands of the trade. Various men and boys were employed on part time. Finally, after consulting with Weierich, it was agreed that a full time man should be employed, to help at the filling station and in the tire and battery business. An advertisement was placed in a newspaper and answered by the plaintiff, John J. Watterson, who saw Roll and Hasselback and was hired by them. The plaintiff, upon examination, says:

“Q. When you say ‘they’ who do you mean? A. Well, I talked to Bob Hasselback first and he referred me to Eddy.

“Referee: Eddy who? Witness: Eddy Roll.

“Q. How much did you earn when you quit? A. I earned $19.

“Q. What were you told at the time you were employed? A. I was to work at the station, sell oil and gas and grease cars. In fact they put me to work right away, serviced cars and put water in radiators and worked at the lower end.

“Q. How often did you work? A. I worked every day. * * *

“Q. My question was, who told you to go to work? A. Well, they told me to get my clothes. Bob and Eddy were there. Nobody else was there. They said ‘if you want to work, go and get your clothes changed and come to work. ’

“Q. So that either or both Hasselback or Roll told you to get your clothes changed and come to work? A. Yes, sir.

“Q. And you did that? A. That’s what I did, and the next day I found out there was a boss there besides them.”

(Roll then states the arrangement as to paying the plaintiff.)

“Q. And how much was John Watterson paid? A. He was paid $15 a week.

“Referee: Who paid him? A. Mr. Weierich allowed us $5 a week and we put $10 to it. ’ ’

The plaintiff was injured while lifting a battery out of an automobile, when a battery hanger slipped. This accident occurred near the building used for tire and battery service.

The plaintiff states his duties as follows:

“Q. What were your duties at the gas station? A. Well, I did everything that Eddy and Bob done. * * #

“Q. What did Eddy and Bob do? A. Eddy and Bob served cars, sold gas, sold tires and batteries, put oil in cars, changed batteries, did everything they did.

‘ ‘ Q. When they sold tires and batteries did they install them? A. Absolutely. The same as I did.”

There can be no doubt that Roll and Hasselback were permitted by Weierich to operate, a separate independent business of their own upon the premises rented by Weierich, for the major purpose of selling gasolines and oils. There can also be no question that plaintiff was employed and paid by Roll and Hasselback. The evidence is conclusive also that all three men, Roll, Hasselback and the plaintiff, were engaged in and about the business of Weierich, who employed the first two men directly for this purpose. It is also apparent that the tire and battery business was almost a necessity to the proper conduct of the filling station and that without it the station’s business would have suffered materially.

The question thus presented is: for the purposes of industrial compensation did the man serve two masters? Was the plaintiff an employee of Weierich as well as of Roll and Hasselhack? Did the allowance of the $5 deduction in accounting to Weierich make him such? Certainly in view of the evidence presented there can be no doubt that the plaintiff could have successfully claimed compensation as an employee of Roll and Hasselback. It is our conclusion that this is the limit of his émployment. The fact that they ■directed the plaintiff to busy himself about the affairs of their employer did not make him the employee of Weierich. An independent contractual relation intervened between Weierich and the plaintiff. This constitutes a bar to any claim by the plaintiff based upon the relationship of employer and employee between Weierich and the plaintiff.

From what has been said it is obvious that Section 1465-61, General Code, cannot control the situation, as it has no application to the relationship existing between the defendant in error and Weierich.

The judgment is reversed and judgment will be here entered for the plaintiffs in error.

Judgment reversed.

Matthews and Hamilton, JJ., concur.  