This appeal presents us with an issue that often arises in workers' compensation cases: whether the relationship of someone to an employer is that of master-servant or independent contractor. Because an independent contractor is not an employee for purposes of workers' compensation law, the resolution of this question determines the employer's obligation to contribute to, and the applicant's eligibility for benefits from, the State Insurance Fund. In this appeal, we are first called upon to decide whether the trial court erred in submitting this issue to the jury.
Whether someone is an employee or an independent contractor is ordinarily
"Whether one is an independent contractor or in service depends on the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created." See, also, Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335; Richardson v. Mehan (1982), 69 Ohio St.2d 52, 23 O.O. 3d 90, 430 N.E.2d 927; Behner v. Indus. Comm. (1951), 154 Ohio St. 433, 43 O.O. 360, 96 N.E.2d 403, paragraphs one and two of the syllabus; Firestone v. Indus. Comm. (1945), 144 Ohio St. 398, 29 O.O. 570, 59 N.E.2d 147, paragraph one of the syllabus; Indus. Comm. v. Laird (1933), 126 Ohio St. 617, 186 N.E. 718, paragraph four of the syllabus; and 1 Restatement of the Law 2d, Agency (1958) 12, Section 2. Cf. Whittington v. New Jersey Zinc Co. (C.A. 6, 1985), 775 F.2d 698; and Western Express Co. v. Smeltzer (C.A. 6, 1937), 88 F.2d 94.
The determination of who has the right to control must be made by examining the individual facts of each case. The factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes travelled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts. See Restatement, supra, at 485-486, Section 220; Young, Workmen's Compensation Law of Ohio (2 Ed. 1971) 33, Section 3.3; and Gillum, supra, at 380-382, 25 O.O. at 534-535, 48 N.E. 2d at 237-238.
In the case sub judice, the trial court denied the cross-motions for summary judgment and submitted the issue of who had the right to control to the jury. Summary judgment is appropriate when the following factors have been established:
"* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O. 3d 73, 74, 375 N.E.2d 46, 47. See, also, Civ. R. 56(C); and Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E.2d 267, 274.
While the material facts of this case are not in dispute, appellant argues that the trial court should have found Bostic to be an independent contractor as a matter of law.
Generally, where the evidence is not in conflict or the facts are admitted, the question of whether a person is an employee or an independent contractor is a matter of law to be decided by the court. See Schickling v. Post Publishing Co. (1927), 115 Ohio St. 589, 155 N.E. 143, syllabus. However, the issue becomes a jury question
"It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue * * *." (Emphasis sic.)
Because appellee submitted sufficient evidence to permit reasonable minds to differ on the issue of who had the right to control the manner or means of doing the work, we find that the trial court did not abuse its discretion in submitting the issue to the jury. Our review of the record reveals that there was evidence from which the jury could reasonably infer that Bostic was either an employee or an independent contractor.
On one hand, evidence was presented which tends to prove Bostic had the right to control the manner or means of doing his job. Bostic's original agreement with appellant was in the form of a lease agreement rather than a union contract between appellant and its employees. Decedent was not a member of the union to which appellant's employees belonged. He began to make the delivery with his own tractor. He did not fill out the health insurance forms required of appellant's employees. He did not agree to become appellant's full-time employee again in his discussion of the matter with Rose. The jury could reasonably conclude from this evidence that Bostic was an independent contractor.
On the other hand, evidence was presented which tends to indicate that appellant had the right to control the manner or means by which Bostic did his work. At the time of the accident, Bostic was using appellant's tractortrailer. The amended agreement between Bostic and appellant provided that, for the second half of the haul, Bostic would be paid the same percentage of gross revenue as any other employee. Appellant provided Bostic with credit cards. Appellant paid Bostic with an employee payroll check, rather than the kind of check appellant used to pay independent contractors. Appellant withheld taxes from Bostic's pay. Appellant gave Bostic specific instructions to return immediately after the delivery without soliciting a return cargo. From this evidence, the jury could reasonably infer that Bostic was appellant's employee.
Construing the evidence most strongly in appellee's favor, we cannot say the trial court erred in denying appellant's motion for summary judgment.
Appellant also contends the trial court erred when it excluded four of appellant's proposed jury instructions. The omitted instructions, according to
Appellant next maintains that the trial court erred in refusing to admit the testimony of its expert witness. Appellant claims the testimony was admissible because it would have aided the jury to determine the character of Bostic's employment by appellant. While testimony on an ultimate issue to be decided by the trier of fact is not per se inadmissible in Ohio, it is within the sound discretion of a trial court to refuse to admit the testimony of an expert witness on an ultimate issue where such testimony is not essential to the jury's understanding of the issue and the jury is capable of coming to a correct conclusion without it. See Evid. R. 702 and 704.
Appellant's final argument is that the trial court erred when it refused to grant appellant's motion for a new trial. After the jury had retired to deliberate, a juror asked the bailiff if the jury could obtain a written copy of the court's instructions. The bailiff informed the jury that its request was denied. This was done without giving notice to the parties. Appellant claims it was prejudiced by this ex parte communication between court and jury.
As a general rule, any communication between judge and jury that takes place outside the presence of the defendant or parties to a case is error which may warrant the ordering of a new trial. See State v. Abrams (1974), 39 Ohio St.2d 53, 68 O.O. 2d 30, 313 N.E.2d 823; Jones v. State (1875), 26 Ohio St. 208; and Kirk v. State (1846), 14 Ohio 511. See, also, United States v. United States Gypsum Co. (1978), 438 U.S. 422; Rogers v. United States (1975), 422 U.S. 35; Fillippon v. Albion Vein Slate Co. (1919), 250 U.S. 76; Petrycki v. Youngstown & Northern RR. Co. (C.A. 6, 1976), 531 F.2d 1363, certiorari denied (1976), 429 U.S. 860; and United States v. Gay (C.A. 6, 1975), 522 F.2d 429. Such communications are required to be made in the presence of the defendant or parties so that they may have an opportunity to be heard or to object before the judge's reply is made to the jury. See Fillippon, supra, at 81.
In the case sub judice, the trial court erred when it did not provide appellant with an opportunity to be heard or to object before it responded to the jury's request. However, the error was harmless and appellant was not prejudiced by the ex parte communication.
Accordingly, we hold that where a jury, during its deliberations, requests a written copy of the trial court's instructions, and the court, out of the presence of the parties, communicates with the jury concerning the court's instructions but only refuses to provide a written copy of the instructions, the error committed by the court in communicating ex parte with the jury is harmless error in the absence of prejudice to the parties. See Abrams, supra.
Having found no merit in appellant's contentions, we hereby affirm the judgment of the court of appeals.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.
"Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact." (Emphasis added.)
The Staff Note to Evid. R. 704 provides, in relevant part, as follows:
"* * * The rule must be read in conjunction with Rule 701 and Rule 702, each of which requires that opinion testimony be helpful to, or assist, the trier of the fact in the determination of a factual issue. Opinion testimony on an ultimate issue is admissible if it assists the trier of fact, otherwise it is not admissible. * * *"
Evid. R. 702 provides:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."