Industrial Com'n of State of Colo. v. Shadowen

• Decision Date: 05 April 1920
• Docket Number: 9757.
• Citation: 68 Colo. 69,187 P. 926
• Court: Colorado Supreme Court
• Parties: INDUSTRIAL COMMISSION OF STATE OF COLORADO et al. v. SHADOWEN.

187 P. 926

68 Colo. 69

INDUSTRIAL COMMISSION OF STATE OF COLORADO et al. v. SHADOWEN.

No. 9757.

Supreme Court of Colorado

April 5, 1920

Error to District Court, Morgan County; L. C. Stephenson, Judge.

Proceeding by M. E. Wolfe under the Workmen's Compensation Act to obtain compensation for injuries, opposed by L. F. Shadowen the employer. An award of compensation, was set saide by the district court, and the Industrial Commission and the claimant bring error.

Judgment of district court reversed, with instructions.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (H E. Curran, of Silverton, of counsel), for plaintiffs in error.

Walter S. Coen, of Ft. Morgan, for defendant in error.

SCOTT J.

This is a proceeding on error to the district court of Morgan county in review of the findings and order of the Industrial Commission.

M. E Wolfe was an employé of the defendant in error, Shadowen, who was engaged in the business of operating a threshing machine. He proceeded from place to place, threshing the grain of farmers for hire.

Wolfe was employed to operate the steam engine which supplied the power, and, while so engaged, was severely injured. The Industrial Commission, upon a hearing, entered an order granting compensation. An appeal was taken to the district court, where the order of the commission was set aside and where it was held that the claimant was not entitled to an award. This decision is before us for review.

The commission found that both the employer and his employé were within the provisions of the Workmen's Compensation Law and subject thereto. The court found specifically:

'(a) That the plaintiff Shadowen was not an employer of more than three men regularly employed in his occupation of threshing grain.

'(b) That the men employed to pitch grain were casual employés.

'(c) That whatever employés were employed by the plaintiff were engaged in an agricultural pursuit and were exempt from the operation of the Workmen's Compensation Law.

'(d) That the plaintiff had not elected to come under the Workmen's Compensation Law, and was not bound thereby.' The question as to the number of employés in the employ of an employer is a question of fact to be determined by the commission, and, under the statute, such finding may not ordinarily be disturbed by the court.

Shadowen himself testified that it required at least four men to operate the machine, though at times he had only three who went with the outfit and that he sometimes employed and paid additional men furnished by the farmers. His testimony upon this point is as follows:

'Q. So the men pitching bundles made you have four employés? A. I had four men, yes, and at times five, enough to run the outfit.

'Q. How many men did you have at most at any one time in October? A. Eight.

'Q. During the season of 1918, was it your practice to furnish these men, or did you aim to run the outfit and let the farmers furnish all the labor outside of the three men? A. We calculated to run with the crew; sometimes we could not, and put on a pitcher.

'Q. Do you go into the season's work prepared to operate either way? A. Yes, sir.'

He further testified that he paid all employés, whether secured by the farmer or not.

Upon the testimony of the employer himself, the commission was justified in finding that he was an employer of at least four men in his enterprise, and it was error for the court to disturb such finding.

It was held by the trial court that the employé was engaged in an agricultural pursuit, and therefore the employment was not within the statute. The exemption provided by the statute is as follows:

'Provided, that any employer commencing business subsequent to August 1, 1915, may make his election not to become subject to the provisions of this act at any time prior to becoming an employer of four or more employés, in a common employment, exclusive of private domestic servants and farm and ranch laborers, by giving notice as above provided. Such employer may withdraw from the provisions of said sections of this act at the expiration of one year, * * * in the manner provided by this act.' Laws 1915, p. 523, § 9.

It will be seen that the language of our statute does not state the exemption to relate to those 'engaged in agriculatural pursuits,' as is the case of some other statutes, but does exclude from the operation of the law only 'private domestic servants, and farm and ranch laborers.' The theory of the law is that domestic service and farm and ranch labor are not to be classed as hazardous occupations, and for such reason are exempted from its operation.

The precise question was determined in Re Boyer (Ind. App.) 117 N.E. 507, under a statute similar to our own in that farm laborers were exempted from the operation of the statute. The court there said:

'In construing or interpreting an act of the Legislature, the courts may take into consideration the general scope and purpose of the act and the condition that prevailed at the time of its passage. Board, etc., v. Given, 169 Ind. 468, 483, 80 N.E. 965, 82 N.E. 918; Hughes v. Indiana Union Traction Co., 57 Ind.App. 202, 105 N.E. 537, and cases cited. The purpose of the act, as indicated by its title, was to prevent industrial accidents, and to provide compensation and adequate medical and surgical care for those injured by accident while engaged in industrial pursuits. It is manifest that the purpose of the act was

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