220 P.2d 721 | Colo. | 1950
delivered the opinion of the court.
This is a review of the judgment of the district court reversing an award of the Industrial Commission. The
The facts upon which the application of the statute must rest are undisputed and are found in claimant’s testimony, and he was the only witness. Briefly narrated, he testified that the hotel company was doing an extensive job of interior remodeling; that George Everett was the chief engineer for the hotel company, and that the arrangements concerning the matter of the employment were made between claimant and Everett; there was no general contractor in charge of the work, but that a Mr. Stenlicht seemed to be a sort of foreman from whom he took orders, as well as from Mr. Everett; that when he contacted Everett concerning the employment, Everett told him they had considerable plastering to "do and took him through the building to
While on the job and in the course of employment which had continued from the early part of 1949, on
Hearing was had before a referee of the Industrial Commission at Colorado Springs on May 27, 1949, and the pertinent part of the referee’s finding and order is as follows:
“Claimant is a plasterer, mason, and cement worker who employs others and carries a policy of Workmen’s Compensation Insurance with the American Employers Insurance Company. He performs services for those who wish to hire him, either under contract or by the day. About January 1, 1949, he undertook to finish a job of plastering for the respondent employer which had been commenced by another, but terminated by respondent because the work was not being performed satisfactorily. In the doing of this work claimant was to receive $4.00 per hour for each pair (one plasterer and his helper) employed on the job. Claimant was not obliged to pay the man that he employed that much, so there was a margin of profit to claimant from each pair employed. The hotel furnished all materials, tools and equipment (except when short of certain tools and equipment claimant furnished some of his own), and the work to be done was indefinite both as to time and amount, and it was optional with claimant whether he worked on the job himself. Under these circumstances claimant, though an insured employer, was an employee of respondent, Antlers Hotel Company. Accordingly, section 50 of the Workmen’s Compensation Act (Section 329, Chapter 97 C.S.A. 1935) does not apply.”
It is contended that the question of liability herein is governed by section 329, chapter 97, ’35 C.S.A., which is as follows: “Every person, company or corporation, that owns any real property or improvements thereon and that contracts out any work done on and to said
The only question before us is whether or not claimant, in doing the work herein outlined on the agreement as stated by him, was an employee of the hotel company or whether or not the hotel company contracted the work out to him, and the fact that he had insurance on his men, which he had carried for about two years, precluded his recovery when injured on the job as a workman. Defendant in error contends that claimant was not an employee, but an independent contractor
Difficulty usually arises in making a determination from the facts as to whether the classification is that of servant or a contractor. To make the distinction here, we look to the following undisputed facts: The understanding contemplated claimant working on the job; that the hotel company had complete control and directions over the work; that it furnished the materials and all equipment; that it could discharge claimant at any time without liability, and that claimant was free to quit at any time without liability; and that the compensation for' the work was not measured by the job.
It is clear that the hotel company, the owner of the property, had the right to terminate the employment at any time without liability to claimant. “Where such right exists the workman is usually a servant. Where it does not exist he is usually a contractor. The measure of compensation is also important for where it is based upon time or piece the workman is usually a servant and where it is based upon a lump sum for the task he is usually a contractor.” Industrial Commission v. Hammond, 77 Colo. 414, 236 Pac. 1006; Industrial Commission v. Bonfils, 78 Colo. 306, 241 Pac. 735.
From the above facts, the referee of the Commission found claimant to be an employee of the hotel company, even though he was an insured employer, and it is readily seen that there is ample substantial evidence to support this finding.
It is certain that the statute provides that the building owner “Shall keep insured his liability.” His liability means a liability not only to the employees of a contractor, but also to the contractor himself if working on the job. The latter part of the statute that relates to the situation where the one contracting to do any work for an owner is an employer, and before commencing the job has provided liability for compensation, _ then the owner is not subject to the provisions
It is contended that the case of Alson Investment Co. v. Youngquist, 107 Colo. 1, 108 P. (2d) 228, is controlling in this case. With that contention, we do not agree because the issue there was between two companies, or more directly, between their insurance carriers, as to which was liable to pay the compensation found to be due. The Alson case, supra, determines nothing more or less than the liability as between the insurance carriers. It decides no part of the real question before us, which as presently advised, is one of first impression before our courts.
Under our interpretation of the statute as applied to the facts herein, the referee of the commission was right in determining that the hotel company was not only the employer in law, but was the employer in fact. It is our opinion that the Act under discussion is constitutional; however, if it could be subject to the
The findings and award of the Industrial Commission on the matters discussed herein were right and should be, and are, affirmed, and the judgment of the trial court is reversed. . .