Bryant v. Hayden Coal Co., 15079.

• Decision Date: 03 May 1943
• Docket Number: 15079.
• Citation: 137 P.2d 417,111 Colo. 93
• Parties: BRYANT et al. v. HAYDEN COAL CO. et al.
• Court: Colorado Supreme Court

137 P.2d 417

111 Colo. 93

BRYANT et al. v. HAYDEN COAL CO. et al.

No. 15079.

Supreme Court of Colorado, En Banc.

May 3, 1943

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by the Hayden Coal Company and Department of Employment Security of the State of Colorado against Fred K. Bryant Jr., and others, to review an award of the Industrial Commission granting unemployment compensation to individual claimants. To review a judgment setting aside the award claimants bring error.

Philip Hornbein, Philip Hornbein, Jr., and Louis Schiff, all of Denver, for plaintiffs in error.

Lewis & Grant and Stephen H. Hart, all or Denver, for defendants in error.

YOUNG, Chief Justice.

This cause is Before us on writ of error to reverse a judgment of the district court which set aside an award of the Industrial Commission granting unemployment compensation to the individual claimants. We herein refer to plaintiffs in error as claimants, or the men; the Hayden Coal Company being designated as the operator, or employer. Claimants prosecute the writ of error. The points specified on which they rely for a reversal of the judgment are as follows:

'1. Whether the unemployment of claimant was due to a strike or to the act of the employer in disabling itself from continuing ordinary mining operations was a question of fact concerning which there was dispute in the evidence, and hence the findings of the Commission must stand.

'2. The action was not commenced within the period provided by statute.'

The general background out of which this controversy arose involved the expiration of the same contract as was involved in the case of Sandoval v. Industrial Commission, reported in 110 Colo. 108, 130 P.2d 930, heretofore reviewed by us. For an understanding of the underlying facts that case should be read in connection with this opinion. The same section of the statute, Colorado Employment Security Act. chapter 167A, '41 Supp. '35 C.S.A., is here involved. Except for certain facts hereinafter mentioned, allegedly distinguishing this from the Sandoval case, supra, it is a companion case to it and counsel for plaintiffs in error so recognize it in their brief. The alleged distinction lies in the following situation:

The contract under which claimants were working was to expire on March 31, 1941. The operator, for a number of months prior thereto, had under consideration the project of sinking its shaft to a deeper level. Prior to March 28, 1941, the last day on which the men worked, a notice had appeared on a bulletin board advising the men to fill their private bins with coal. The operator had accumulated a supply of fifty or more carloads of coal. The record does not disclose that the operator ever summoned any men to mine coal after March 28. It does show that if called, the men would not have worked without either a new contract based on the Appalachian agreement, or an interim contract making any subsequently-agreed scale retroactive to April first. At the time the hearing was held in this case, May 13, 1941, the operator still had a number of cars of lump coal left, but had purchased some coal of smaller size from other operators to fill the orders of some of its customers.

The record indicates that April is a slack month in coal production, and over a period of five years the operator had worked its mine in April, five, two, five, six and thirteen days, and in May, three, eight, four, two and twelve days. June and July are on about the same production basis, and August is somewhat better. It appears that the operator had considered the matter of sinking the shaft during the summer, but experience showing that there was generally a period of inactivity between the termination of one two-year contract and the consummation of a new one, and none having been consummated on March 28, the operator proceeded with sinking the shaft. It appeared that with considerable inconvenience it was possible to sink the shaft without closing it to the hoisting of coal; further, that the shaft, after being rigged for the deeper sinking, could be prepared for hoisting coal at a cost of $250 in from five to twenty-four hours, and the testimony was that if the contract had been signed and the men willing to work, and the operator had a demand for coal, it would have gone back on a production basis.

A number of mines in the northwestern Colorado field signed an interim agreement. Whether, with no shaft to sink and a substantial demand for coal, the operator in this case would have signed an interim agreement, does not...