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Faulkner v. Mayfield3/25/1988
going, assignments of error one and two are well-taken, and the judgment of the trial court is reversed. Since the trial court granted summary judgment solely on the issue of defendant's employee status, this case is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
STEPHENSON, J., concurs separately.
ABELE, J., dissents.
STEPHENSON, J., concurring. I concur in the judgment reversing the entry of summary judgment in favor of appellees and remanding the cause to the court below for further proceedings, but would add the following.
On March 26, 1985, appellant filed an application for payment of workers' compensation and medical benefits, listing appellee city of Ironton as his employer and stating the date of his accident as January 8, 1985. On November 6, 1985, a district hearing officer of the Industrial Commission of Ohio denied appellant's claim on the basis that there was no express or implied contract of hire. This decision was affirmed by the regional board of review and further appeal therefrom was denied. On July 31, 1986, appellant filed a notice of appeal pursuant to R.C. 4123.519.
On August 26, 1986, appellant filed a petition and complaint in the court below. Appellees filed an answer and a motion for summary judgment. On January 15, 1987, appellant filed a memorandum contra appellees' motion for summary judgment and attached an affidavit wherein he stated, in pertinent part, as follows. In December 1984, appellant was convicted in the Ironton Municipal Court of driving while intoxicated and was sentenced to three days in jail and fined the sum of $375. Appellant served the three-day jail sentence and was given the option by the Ironton Municipal Court to pay the $375 fine or to work under the direction of the Ironton Municipal Court bailiff at the rate of $30 per day until the fine was completely paid.
Appellant elected to work off the fine for the reason that it would be difficult for him to earn $30 per day doing other work. On January 8, 1985, appellant was directed by the bailiff to report to township trustee Donald Klaiber's residence and was directed to cut firewood. Appellant's finger was caught in the wood splitter, causing a portion of his finger to be amputated. On February 9, 1987, the court below granted appellees' motion for summary judgment, finding no genuine issue as to any material fact and, further, that "there was no employer /employee relationship between the Plaintiff and the Defendant, City of Ironton."
Civ. R. 56(C) provides, in pertinent part as follows:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
R.C. 4123.01(A)(1)(a) provides that an employee for purposes of the Workers' Compensation Act includes every person in the service of a municipal corporation under any appointment or contract of hir
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