Industrial Com'n v. Continental Inv. Co.
| Decision Date | 05 October 1925 |
| Docket Number | 11240. |
| Citation | 242 P. 49,78 Colo. 399 |
| Parties | INDUSTRIAL COMMISSION et al. v. CONTINENTAL INV. CO. |
| Court | Colorado Supreme Court |
Rehearing Granted Dec. 21, 1925.
Error to District Court, City and County of Denver; Charles C Butler, Judge.
Proceeding under the Workmen's Compensation Act by John Garcher claimant, opposed by the Continental Investment Company, a corporation, employer. From a judgment of the district court setting aside an award of the Industrial Commission, claimant brings error.
Reversed with directions to affirm award of the commission.
William L. Boatright, Atty. Gen., and John F. Reynes and Otto Friedrichs, Asst. Attys. Gen., for Industrial Commission.
Foster Cline and George A. Trout, both of Denver, for John Garcher.
John T. Bottom and Paul F. Irey, both of Denver, for defendant in error.
The Industrial Commission awarded compensation to Garcher against the Continental Investment Company, the district court set aside the award and directed an award in favor of the company, and the case is brought here for review.
The facts are that the Continental Investment Company, under the name of the Post Coal & Iron Company, operated a coal-yard, which was managed by one Garberson who was paid 80 cents a ton for the transportation and delivery of the coal to the customers. Garberson's wife owned a truck which was used for the delivery of coal, and the driver was paid by Garberson's checks one-half of the said 80 cents per ton. On the day of the accident, Garcher took the place of the driver and was injured during the course of his work. The only question is whether he was an employee of the Continental Investment Company. We think he was.
Section 49 of the Workmen's Compensation Act (Laws 1919, p. 700) reads as follows: 'Any person, company, or corporation operating or engaged in or conducting any business by leasing, or contracting out any part or all of the work thereof to any lessee, sublessee, contractor or subcontractor, shall irrespective of the number of employees engaged in such work, be construed to be and be an employer as defined in this act and shall be liable as provided in this act to pay compensation for injury or death resulting therefrom to said lessees, sublessees, contractors and subcontractors and their employees.'
Without this section we do not think Garcher may be said to be the company's employee. Garberson was selling coal for the company and delivering it at a fixed price per ton, was using his own truck (borrowing or hiring it from his wife is immaterial), was hiring his own men to transport the coal, was paying them himself out of his compensation received for such carriage, was not controlled by the company as to hours or manner of work. All that was required of him was the result; that is, delivery to the customers. He may therefore be said to be an independent contractor (Flickenger v. Ind. Acc. Com., 181 Cal. 425, 184 P. 851, 19 A.L.R. 1150; Standard Oil Co. v. Anderson, 212 U.S. 215, 221, et seq., 29 S.Ct. 252, 53 L.Ed. 480), and, if so, Garcher was his employee and not the company's.
But Garcher, under section 49, may be said to be the company's employee. The court below, however, thought that section unconstitutional because not properly within the terms of the title of the act. Section 21 of article 5 of the Constitution reads:
'No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.'
The title of the act is as follows:
'An act to determine, define and prescribe the relations between employer and employee and providing for compensation and benefits to employees and their dependents for accidental injury to or death of employees for insurance of such compensation and benefits; creating a state compensation insurance fund,' etc.
We think the court was wrong. The argument for the company is that the Constitution permits the enactment of nothing which is not within the terms of the title; that the title of the act refers only to the relations of employers and employees that the section in question relates to and concerns the relations of principals to the employees of their independent contractors; that this is not the relation of employer to employee, and therefore not within the scope of the title of the section, and so the section is to that extent void. The reasoning is forcible,...
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