#### Roberts, Appellant, *v.*Rumpke et al., Appellees.

(Decided January 29, 1940.)

*Mr. George Luedeke*and *Mr. R. I. Dickerson,*for appellant.

*Messrs. Ratterman, Cowell & Fletcher,*for appellees.

Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, Ohio.

The sole question presented is whether the defendants employed three or more men, thus requiring compliance with the provisions of the Workmen’s Compensation Act.

The plaintiff was an employee of the defendants, a partnership, and was injured during and by reason of his employment.

For some considerable time previous to the injury of the plaintiff, William Rumpke owned a coalyard and a wrecking and scrap iron business. When the United States government building in Cincinnati was razed, a large quantity of stone became available. William Rumpke, Barney Rumpke, and James Coffee then entered into a partnership for the purpose of securing the large stones used in the government *23building, hauling them to Rumpke’s yard, carving them, and selling them as tombstones and grave markers. A small building was erected adjoining the coal-yard and certain polishing and cutting machinery were set up therein. Each of the partners contributed a certain amount of labor and equipment in hauling the stones, and was given a credit in what was called a “capital fund.”

James Coffee was put in active charge of the actual work upon the stones. William Rumpke delivered the stones in trucks, usually used in his coalyard and wrecking business. Barney Rumpke kept the books of the partnership. The plaintiff, after the monument business started, was regularly employed in the surfacing of the stones, and in delivering them upon the trucks of William Rumpke.

There is evidence that in September 1937 a man by the name of Elmore was employed by the partnership and worked intermittingly until the date of Roberts’ injury in November 1937. The evidence does not establish that he was regularly employed.

A man by the name of Stith was employed from time to time as a salesman. It appears that when he sold a monument he received a commission from the partnership. He accepted regular employment after the injury to Roberts. He had a drawing account for necessary expenses. The evidence fails to show that he could be considered an employee regularly employed.

Alliston Sweet was employed by William Rumpke as a driver for his trucks. He was not an employee of the partnership. The evidence develops that while William Rumpke, as an independent contractor, was employed from time to time to deliver monuments for the partnership, other independent contractors were also used by the partnership for delivering monuments and that William Rumpke was not regularly employed by the partnership for this purpose. His employee, *24Sweet, would, therefore, not qualify as an employee by virtue of the provisions of Section 1465-61, General Code. If the independent contractor was not regularly employed, his employee would not be regularly employed.

Reference to the books kept by the partnership shows that other persons worked occasionally for the partnership, and that those hereinbefore mentioned worked in the capacities, for the periods and in the manner noted.

Roberts, the plaintiff, was injured when, in company with Sweet and Coffee, he was unloading a stone hauled on William Rumpke’s truck to a customer in Kentucky.

From what has been said it appears, therefore, that the plaintiff was the only employee regularly employed by the partnership.

It becomes unnecessary to determine the constitutionality of Section 1465-60, General Code, providing that a member of a partnership performing manual labor for the partnership shall be considered an employee thereof for the purposes of workmen’s compensation.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

*Judgment affirmed.*

Hamilton, P. J., concurs.

Matthews, J.

dissenting. 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 in *State, 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 *25rae 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 Sections 26 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 *26determining the minimum class to he excluded was within its power.

Certainly, a provision including a partner who worked regularly alongside of employees, in determin-. ing 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.