Plаintiff’s first contention is that neither Section 35 of Article II of the Constitution nor Section 4123.74, Revised Code, bars a suit for persоnal injuries by a loaned servant against the employer to whom he is loaned.
However, in our opinion, previоus decisions of this court require the following conclusion:
Where, as in the instant case, an employer employs an employee with the understanding that the employee is to be paid only by the employer and at a cеrtain hourly rate to work for a customer of the employer and where it is understood that that customer is to have the right to control the manner or means of preforming the work, such employee in doing that work is an employеe of the customer within the meaning of the Workmen’s Compensation Act; and, where such customer has compliеd with the provisions of the Workmen’s Compensation Act, he will not be liable to respond in damages for any injury received by such employee in the course of or arising out of that work for such customer.
The arrangement between the truck owner, Muni, and the borrowing employer, Aztec, in thаt case is described in the opinion (page 190) as follows:
“Muni agreed to furnish the truck, driver, gasoline, oil, tires, acсessories and repairs at his own expense. He paid the plaintiff $18 per trip plus a bonus for over-weight. Aztec * * * paid Muni for furnishing equipment, facilities and operator thereof $40 per trip, plus twenty cents for each 100 pounds over 20,000 * *
The syllabus reads in part:
“1. The chief test in determining whether one is an employee or an independent contractor is the right to control the manner or means of performing the work.
“2. If such right is in the employer, the relationship is that of emplоyer and employee, or master and servant; but if the manner or means of performing the work is left to one responsible to the employer for the result alone, an independent contractor relationship is thereby created.”
There is nothing in the syllabus or opinion of that case to indicate that the question whether one is an еmployee within the meaning of the Workmen’s Compensation Act should be any different from the question whether one is an employee for the purposes of applying the doctrine of respondeat superior. Other decisions in which this court has been confronted with the problem as to whether an employee of one employer has become an employee of another within the meaning of the Workmen’s Compensation Act have not even suggested that there should be such a difference. See Behner v. Industrial
As stated in paragraph one of the syllabus of the Bekner case:
“* # * If the right to control the manner or means of performing the work is in the person for whom the service is performed, the relationship is that of employer and employee or master аnd servant * *
This is not an instance where, to use the words quoted by plaintiff from 1 Larson, Law of Workmen’s Compensation, Section 47.10, “an employee status to which he has never consented” is being “thrust upon a worker.” Cf. Drexler, an Infant, v. Labay (1951),
As plaintiff recognizes, Trumble Cliffs Furnace Co. v. Shachovsky (1924),
It may be noted that (probably because of State, ex rel. Bettman, Atty. Genl., v. Christen [1934],
In the instant case, rеasonable minds could conclude only that the right to control the manner and means of performing the work which plaintiff was doing when injured was in Mac-Gregor. It necessarily follows that plaintiff was an employee of MacGregor at that time. Bobik v. Industrial Commission, supra (
Judgment affirmed.