
    Colbert v. Industrial Commission of Ohio.
    (Decided May 31, 1932.)
    
      Mr. Ben G. Ruby, for plaintiff in error.
    
      Mr. Gilbert Bettman, attorney general, and Mr. Arthur Krause, for defendant in error.
   Vickery, J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county; the purpose being to reverse a judgment rendered in favor of the Industrial Commission.

From the record, arguments of counsel and briefs, we learn that the Dregalla Trucking Company regularly employed three or more employees, and had paid into the state insurance fund and was insured under the Workmen’s Compensation Act of the state of Ohio; that it hired truck drivers to deliver goods to its customers; and that one Ben Krásky was employed by the trucking company to drive one of its trucks; that he was paid upon a tonnage basis; that on this particular day, to wit, January 11, 1929, he was delivering a truck loaded with goods, which was heavier than he ordinarily delivered, and so he picked up and employed the decedent, Frank Colbert, to help him unload the goods, and within an hour or two after Colbert had been picked up, and thus hired by Krasky, the truck tipped over and Colbert was injured, and it is claimed that these injuries caused his death from tuberculosis, he having a tubercular gland at the time; and inasmuch as his death was caused by injuries received while being employed on the truck of the trucking company, it was claimed that he was entitled to compensation, and an application was made therefor.

It is stated by counsel for plaintiff in error, Mary Colbert, that the Industrial Commission paid compensation for a time and then quit. This, however, does not appear of record, and counsel for the Industrial Commission state in open court that they do not know of any such thing. It appears that the Industrial Commission refused to pay compensation on the ground that Colbert was not employed by the insured, and that he was nothing more than a casual employee at best, and therefore was not entitled to any benefits under the statute.

After the Industrial Commission had rejected the claim, proper steps were taken, and an appeal was filed in the common pleas court, where the same evidence that was introduced before the commission was introduced before the jury. In this connection I will digress to say that that testimony is not really before this court, inasmuch as it is attached physically to the bill of exceptions but was not allowed as a part of the record by the trial judge. See Konigsberg v. Lamports Co., 116 Ohio St., 640, 157 N. E., 477, and eases there cited. Now, as we have remarked before, in the trial of a case on appeal in the common pleas court before a jury, while the evidence is limited to that introduced before the commission, yet it should be produced in the regular way, and read to the jury, so that objections and exceptions can be taken to the testimony, and then a bill of exceptions should be made embodying all the testimony and submitted to the trial court to sign as is done with any other bill of exceptions. Nor will it do to say that a person is poor and cannot afford a stenographer. It was not necessary to have had a stenographer, because all the testimony was there in writing, and all that had to be done was to copy out that portion which had been submitted to the court and jury, and it could have been written out by any typist without having a stenographer take it. We speak of this because we would like to have a practice established to the effect that in the trial of cases before the common pleas court on appeal from the Industrial Commission’s rejection of a claim there must be a bill of exceptions embodying the testimony and presented in the ordinary manner.

At the conclusion of all the testimony and arguments of counsel, the jury found for the Industrial Commission against Mary Colbert, the plaintiff in error, who was plaintiff below, and, as already stated, it is to reverse that judgment that error is prosecuted here.

Now apparently the only defense that the Industrial Commission really had was that this man was not an employee of the company when he was injured. The only evidence that was introduced in this record to prove that he was such an employee was the testimony of Ben Krasky, v/ho was the driver of the truck, and he said he employed Colbert, and had authority to pick up anybody to help him when his load was heavy. Well, it is a principle which is well known as one of the elementary principles of the law of agency that one cannot prove agency by the declaration of the agent. There is no other testimony in this record other than the statement of the driver of this truck that this man ever was employed by the insured company.

The accident happened within an hour or so after Colbert was picked up as a helper, and before the assured company had or could have had any knowledge of such employment. Therefore the question of estoppel or ratification does not arise in the case; and, outside the testimony of the driver of this truck, there is no evidence of any employment whatever, even though but a casual employment.

Now Krasky says that the foreman authorized him. That does not help the matter any, because it is still the declaration of the agent to prove his authority, but, taking the testimony of the truck driver himself, he states, as the record shows, that he delivered his goods upon a tonnage basis, and that he might get anybody he wanted to help him unload, but, in the event he did so, the man was working for him, and he either paid him his wages direct or had it deducted from his voucher. Now this is not contradicted. It is the testimony of the truck driver himself, and it clearly shows, even though he had authority to hire somebody to help him unload, the man hired was working for the truck driver. The truck driver was an independent contractor in a measure, because he delivered upon a tonnage basis, and, if the load was handled by himself, he would get all the pay, and the amount of pay depended upon the tonnage of the truck’s load; and if he hired some one else to help him it simply came out of his part of the compensation for delivering that load of goods, and he himself says so without any equivocation. Consequently there is no evidence in this record to show that this man was ever the employee of the assured company. On the contrary, there is positive evidence by the truck driver himself, the plaintiff’s witness, to the effect that Frank Colbert was not an employee; and, outside of this, the definition of employee under General Code, Section 1465-61, paragraph 2, excludes a casual employee from the benefits of the act; and so, for these two reasons, to wit, first, that the decedent was not employed, and, second, because he was nothing more than a casual helper, for whom compensation is not allowed, the jury could have done nothing other than it did.

There being no error in this record, we cannot do other than affirm the judgment.

Judgment affirmed.

Levine, P. J., and Weygandt, J., concur.  