Industrial Commission of Colorado v. Bracken

• Decision Date: 12 December 1927
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. BRACKEN et al. BRACKEN et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

262 P. 521

83 Colo. 72

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

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

Supreme Court of Colorado

December 12, 1927

Department 1.

Error to District Court, Garfield County; John T. Shumate, Judge.

Separate proceedings under the Workmen's Compensation Act by Alma Frances Bracken and others to recover for the death of Dan Bracken, opposed by the Colorado Fuel & Iron Company and the Standard Accident Insurance Company. Judgment reversing an award of the Industrial Commission in favor of the Standard Accident Insurance Company and sustaining an award in favor of the Colorado & Fuel & Iron Company, and the Industrial Commission and Standard Accident Insurance Company and claimant separately bring error.

Reversed with directions as to the Industrial Commission and the Standard Accident Company, and affirmed as to claimants.

William L. Boatright, Atty. Gen., and Otto Friedrichs, of Denver, Colo., for Industrial Commission.

William E. Hutton and J. P. Nordlund, both of Denver, for Standard Accident Ins. Co.

John L Noonan and W. F. Noonan, both of Glenwood Springs, for Alma F. Bracken and others.

Fred Farrar and H. Wendell Stephens, both of Denver, for Colorado Fuel & Iron Co.

DENISON J.

The district court, reviewing an award of the Industrial Commission, held that the Standard Accident Insurance Company was liable for compensation for the death of Dan Bracken (in this respect reversing the commission), and that Colorado Fuel & Iron Company was not (in this respect sustaining it). There are two writs of error: No. 11941, by the Industrial Commission and the insurance company against the claimants widow and children of the deceased, and No. 11942, by the claimants against the Industrial Commission and the Colorado Fuel & Iron Company. There is but one record and actually but one case, and the questions are whether either the insurance company or the Colorado Fuel & Iron Company is liable for compensation.

The essential facts are these: Bracken was sole lessee from the Colorado Fuel & Iron Company of a coal mine; he employed several men and obtained insurance for their compensation, though they were less than four, under the Workmen's Compensation Act (C. L. §§ 4375-4525), from the insurance company, after which he was killed while working in the said mine.

The insurance company makes two points: (1) That the claimants have no right under the Workmen's Compensation Act to maintain a suit as against the insurance company because they did not petition for review within ten days. (2) That the insurance company is not liable for anything for the death of Dan Bracken because the policy merely indemnified him for accident to his employees.

The insurance company is right on both points. The award in its favor was made July 30, 1926. September 4th, on petition for review, filed in due time, the award was adhered to; then, after the lawful ten days had expired (Sess. Laws 1923, c. 203, § 6), claimants moved to reopen the case, and December 28, 1926, this motion was denied by a supplemental award of that date which reaffirmed the former award.

If, upon these facts, the case can be reviewed, it always can and the statute is nullified. It says unless the petition for review is filed in ten days the 'award shall be final,' and that 'no action, proceeding or suit to set aside, vacate, or amend' it shall be brought; but if any one at any time may petition to reopen the case and upon denial thereof take the matters to the courts, these provisions mean nothing.

It may be conceded, for present purposes, that the commission may reopen on its own motion, and when it does so and renders a new award the same may be reviewed; but it has not done so here. It has merely declined to reopen. The claimants argue that since the commission entitled its order of December 28th 'supplemental award' and reiterated its former award, it must be supposed to have reopened the case on its own motion, as it might do under the statute, but such supposition contradicts the terms of the order itself, which not only denies the motion, but states that no further hearing is necessary. There is nothing in State Fund v. Industrial Com., 80 Colo. 130, 249 P. 653, inconsistent with this conclusion.

We cannot agree with claimant's counsel that there was no final award till both claims, that against the insurance company and that against the Colorado Fuel & Iron Company, had been determined. The cases were separately filed and separately heard. When the insurance company was discharged that was final in its case. It would serve no purpose to require to it attend the hearing of the fuel company's liabilities.

As to the terms of the policy, also the insurance company is right. It is the ordinary policy in such cases, issued to Dan Bracken as employer. In effect it agrees to pay any compensation awarded as workmen's compensation to his employees in said mine. There is nothing in the policy insuring the employer's compensation, should he be entitled to any, nor is there evidence that any premium has been collected for his insurance. The insurer has received only the minimum premium. It is therefore plain that the insurance company can be held liable only upon the theory that when an employer works with his men he is his own employee. See C. L. §§ 4382, 4391, and Sess. Laws 1923, p 733. An employee, in Webster, is 'one employed by...