Industrial Com'n of Colo. v. Bonfils

• Decision Date: 09 November 1925
• Docket Number: 11357.
• Citation: 78 Colo. 306,241 P. 735
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. BONFILS et al.
• Court: Colorado Supreme Court

241 P. 735

78 Colo. 306

INDUSTRIAL COMMISSION OF COLORADO et al. v. BONFILS et al.

No. 11357.

Supreme Court of Colorado, En Banc.

November 9, 1925

Rehearing Denied Dec. 21, 1925.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Proceeding under the Workmen's Compensation Act by Martha Sprigg claimant, for the death of Edward C. Sprigg, her husband opposed by F. G. Bonfils and others, employers, and the Continental Investment Company, insurer. Judgment setting aside an award of compensation by the Industrial Commission and the Commission and the claimant bring error.

Reversed, with directions.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Foster Cline and George A. Trout, both of Denver, for plaintiff in error Sprigg.

John T. Bottom and Paul F. Irey, both of Denver, for defendants in error.

DENISON J.

The Continental Investment Company operated a coal vard under the name of the Post Coal Company. Edward C. Sprigg was accidentally killed while hauling coal for that company, and Martha Sprigg, his widow, claims compensation. The defense is that he was not the employee of the company. The commission gave her an award, which the district court set aside, and the case comes here on error.

The Attorney General, for the Commission, claims that Sprigg was an employee of the defendant in error under section 9 of the Workmen's Compensation Act (Laws 1919, p. 700), and also under section 49. Said section 9 is as follows:

'The term 'employee' shall mean and include: * * * Every person in the service of any other person * * * under any contract of hire, express or implied. * * *'

Was Sprigg in the service of the Continental Investment Company under a contract of hire? We think he was. He was engaged to haul coal with his own truck to customers of the company at a fixed price per ton; he was allowed to haul it himself or employ others; he was allowed to come and go as he pleased; need not report for work at any time nor at all unless he chose; could work for others if he desired. He called at the yard when he pleased, and was given coal to haul if there was any to be hauled when he called. The company was under no obligation to give him work, and he was under no obligation to work for the company; therefore he could quit when he chose, and the company could discharge him when it chose. This was service for hire.

A servant is one whose employer has the order and control of work done by him, and who directs or may direct the means as well as the end. Arnold v. Lawrence, 72 Colo. 528, 530, 213 P. 129. By virtue of its power to discharge, the company could, at any moment, direct the minutest detail and method of the work. The fact, if a fact, that it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor. Franklin Coal & Coke Co. v. Ind. Com., 296 Ill. 329, 129 N.E. 811. The most important point 'in determining the main question [contractor or employee] is the right of either to terminate the relation without liability.' Ind. Com. v. Hammond, 77 Colo. 414, 236 P. 1006. This is a confirmation by this court of the rule above stated as to control, because the right immediately to discharge involves the right of control.

Sprigg was not employed 'for the completion of a given task according to plan' (Ind. Com., supra); nor to haul a certain amount of coal (McKinstry v. Guy Coal Co., 116 Kan. 192, 225 P. 743, 38 A.L.R. 837); the amount of his work was not fixed either by time or measure (Muncie Co. v. Thompson, 70 Ind.App. 157, 123 N.E. 196); his work did not involve the furnishing of capital, shop facilities or assistants, and he did not contract 'to do certain work' or to furnish any materials (Arnold v. Lawrence, 72 Colo. 528, 213 P. 129). He was not an independent contractor.

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