Epitomized Opinion
Ohio Service Co. employed Craig to dig a ditch from its service line to the corner of its office building, and agreed to pay him therefor $1 per hour. He was not contributing to the state insurance fund and did not employ five or more persons regularly. Craig engaged one Simmons and another to dig the trench. The evidence disclosed that after Simmons had dug the trench to the corner of the building, officers of the Service Co. instructed him to extend the trench under the building, and in doing this he camie in contact with an electric wire and was instantly killed. A claim for compensation was denied by the Industrial Commission and a petition was filed in Tuscarawas Common Pleas, which rendered judgment for the Commission and Service Co. on motion to arrest the case from the jury. This judgment was reversed by the Court of Appeals. The Compensation Act provides (Sec. 1463-60 GC.) that every person, firm and corporation, regularly employing five or more workmen, shall be subject to the Act. 1465-61 GC. provides that every person in the service of an independent contractor, who neither contributes to the state insurance fund nor employs five or more workmen regularly, shall be considered as the employee of the person who has entered into contract with the independent contractor unless such person elects to regard the independent contractor as the employer. In affirming the judgment of the Court of Appeals, the Supreme Court held, in official Syllabus, 27 Abs. 499, which reads as follows:
1. “An employee of an independent contractor who neither contributes to the state insurance fund nor employed five or more workmen, does not come under the provisions of Sec. 1465-61 GC. and cannot be considered as the employe of the person who entered into a contract with such independent contractor.”
Any other view than here expressed would give a single employee of an independent contractor compensation, but would give no compensation if he were an employee of a person not an independent contractor employing less than five workmen.”
2. “It is clear from the record that there was some positive and direct testimony offered by the plaintiff tending to show that 'Simmons was in fa^H ric? in the employ, direction and control of the Servici Co. at the time of his injury. The Court of Appeals did not err in reversing the trial court for arresting the testimony from the jury at the close of plaintiff’s evidence.”