Industrial Com'n v. Hammond

• Decision Date: 01 June 1925
• Docket Number: 11123.
• Citation: 236 P. 1006,77 Colo. 414
• Parties: INDUSTRIAL COMMISSION et al. v. HAMMOND.
• Court: Colorado Supreme Court

236 P. 1006

77 Colo. 414

INDUSTRIAL COMMISSION et al. v. HAMMOND.

No. 11123.

Supreme Court of Colorado, En Banc.

June 1, 1925

Error to District Court, Saguache County; J. C. Wiley, Judge.

Proceeding under the Workmen's Compensation Act by Josie E. May, on behalf of herself and minor children, for compensation for the death of Walter J. May, employé, opposed by B. J. Hammond and another, employers. Award of Industrial Commission set aside by district court as to named employer, and claimants bring error.

Reversed and remanded, with directions to affirm the award in part.

Tupper & Smith, of Grand Junction, for plaintiffs in error.

Augustus Pease, of Canon City, for defendant in error.

Wayne C. Williams, Atty. Gen., Riley R. Cloud, Asst. Atty. Gen William L. Boatright, Atty. Gen., and John F. Raynes, Asst Atty. Gen., for Industrial Commission.

BURKE J.

Walter J. May met with an accidental death while hauling lumber for one Rathbun, lessee of defendant in error Hammond, neither of whom carried industrial insurance. Deceased's widow, on behalf of herself and children, made claim against Rathbun and Hammond under the Workmen's Compensation Act and obtained judgment. Hammond took the cause to the district court, where the findings and award as to him were set aside. To review that judgment this writ is prosecuted.

Hammond owned a sawmill which he leased August 15, 1922, to Rathbun including machinery, tools, and equipment. The lease was for one year. By its terms Rathbun agreed to produce 300,000 feet of lumber from the mill, and Hammond agreed to pay charges due the government for the cutting, and was to receive as rent one- sixth of the finished product delivered on cars, or one-sixth of the net proceeds. Rathbun employed the deceased, at $4 per thousand, to haul logs from the timber to the mill and lumber from the mill to the railroad cars, using his own team and wagon. November 2, 1922, May was killed while so employed.

Amended section 16 of the Workmen's Compensation Act (Laws 1923, p. 733), reads as follows:

'Every employer of four or more employés (not including private domestic servants and farm and ranch laborers), engaged in a common employment, shall be conclusively presumed to have accepted the provisions of this act, unless, prior to the date such employer becomes the employer of four or more persons, he shall have filed with the Commission a notice in writing to the effect that he elects not to accept the provisions of this act or unless said employer has rejected the provisions of the Workmen's Compensation Act of Colorado in conformity with the provisions of said act as heretofore existing.'

Section 27 of the act (Laws 1923, p. 736) provides that if an employer, subject to the terms of the act, carries no insurance, and one of his employés, who has not rejected the act as therein provided, is killed or injured, compensation may be claimed according to the terms of the act----

'and in any such case the amounts of compensation or benefits provided in this act shall be increased fifty per cent.'

The same section further provides that the present value of the compensation awarded shall be paid to a designated trustee, or a bond given conditioned for compliance with the terms of the award, and, in the event the employer shall fail to pay or give bond, the award may be filed in the office of the clerk of the district court, recorded in the judgment book and judgment docket----

'and shall thenceforth have all the effect of a judgment of the district court, and execution may issue thereon out of that court as in other cases.'

Section 49 of the act (Laws 1919, p. 717) reads in part:

'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 employés 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 employés, * * * and such lessee, sublessee, contractor or subcontractor, as well as any employé of such lessee, sublessee, contractor or subcontractor, shall each and all of them be deemed employés as defined in this act. Such employer shall be entitled to recover the cost of such insurance from said lessee, sublessee, contractor, or subcontractor, and may withhold and deduct the same from the contract price. * * *'

The Commission found that May was employed by Rathbun; that the death was caused by an accident arising out of and in the course of decedent's employment; that the widow and children were dependents, and sole dependents, of deceased; that Rathbun was operating the mill under a lease from Hammond, the owner; that neither carried insurance; that Rathbun employed four or more employés regularly in such operation. The compensation allowed by the commission was increased 50 per cent. on account of the failure of lessor and lessee to carry insurance, and the medical, surgical, hospital, and undertaker's claims were likewise increased 50 per cent. It was further ordered by the Commission that the lessor and lessee execute a bond for compliance with the order, or pay to the trustee the present value of the compensation awarded.

The record before us does not disclose the grounds upon which the district court set aside the findings and award as to defendant in error, but it is contended said sections 16, 27 and 49 of the act are unconstitutional. As similar statutes have repeatedly been declared...