Faith Realty & Development Co. v. Industrial Commission
| Decision Date | 03 November 1969 |
| Docket Number | No. 23883,23883 |
| Citation | 170 Colo. 215,460 P.2d 228 |
| Parties | FAITH REALTY & DEVELOPMENT COMPANY, Plaintiff in Error, v. INDUSTRIAL COMMISSION of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Robert W. Johnson, Colorado Springs, for plaintiff in error.
Alious Rockett, Feay Burton Smith, Jr., William J. Baum, Denver, for defendant in error.
The parties will be referred to as they appeared in the trial court where the plaintiff in error was the defendant and the balance due for premiums on a workmen's
Plaintiff filed this action in the trial court to recover the sum of $343 as the balance due for preminums on a workmen's compensation insurance policy issued by the State Compensation Fund. Defendant resisted the claim on the contention that it hired a number of real estate salesmen who were agents or independent contractors and not employees; and therefore, the policy should not have covered the salesmen and the premium balance of $343 was not recoverable.
After the complaint and answer were filed, interrogatories were submitted and answered by the defendant. Also, the deposition of C. V. LeForce, president of the defendant company, was taken. The plaintiff then filed a motion for summary judgment which was granted and the trial court entered judgment for the plaintiff, the Industrial Commission, for $343.
The sole question on this writ of error is: Were the real estate salesmen, who were engaged by the defendant, a real estate brokerage company, employees within the intent and meaning of the Workmen's Compensation Act of Colorado? We answer this question in the affirmative as did the trial court, and we therefore affirm this judgment.
The defendant in support of its argument that its real estate salesmen are independent contractors and therefore, do not come within the coverage of the workmen's compensation insurance policy, maintains that its office manual under which its real estate salesmen work, specifies that these salesmen shall be deemed to be independent contractors. This manual also provides that the salesmen shall be compensated in the form of commissions only and shall be liable for their own hospitalization insurance, car insurance, business cards, name plates, long distance telephone calls, license fees, organization dues, and convention registration fees. The manual also states that the real estate salesman must provide his own health and accident coverage, unemployment benefits, and such other coverage as he may desire.
The manual provides that the defendant broker has the right to discharge a salesman at any time if it should appear to the defendant that the salesman has been dishonest, incompetent, negligent, unfaithful, or inefficient in the defendant company's best interest. The manual also states that the defendant will not withhold from the salesman's commission any Federal or State income taxes or social security taxes.
We are not of the view that the provisions of this office manual under which the real estate salesmen are hired and render service for the defendant broker, are the exclusive considerations which determine the relationship between the defendant and its real estate salesmen. This relationship must also be viewed in the light of other considerations and the additional facts which are undisputed in this record. If all the facts of this case reveal an employer-employee relationship, as we hold they do, the characterization of the real estate salesman as an independent contractor in the manual is ineffectual.
Our Workmen's Compensation Act at C.R.S.1963, 81--2--7(2) defines employees as:
'Every person in the service of any person, association of persons, firm, private corporation, including any public service corporation, personal representative, assignee, trustee, or receiver, under any contract of hire, express or implied, including aliens and also including minors, whether lawfully or unlawfully employed * * *.'
With the above definition in mind, the following facts as shown from the deposition of Mr. LeForce, the president of the defendant company, reveal, in our view, an implied contract of hire of an employee who shall render service under the control and direction of the defendant. It is noted that although the term independent contractor was not defined in the manual, Mr. LeForce, when asked by plaintiff's counsel what he and the salesmen he employed understood by that term, replied: 'Well, I believe they understand that they are in the same status as a person that I would hire to...
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