Lackey v. Industrial Commission of Colorado

• Decision Date: 20 September 1926
• Docket Number: 11592,11593.
• Citation: 80 Colo. 112,249 P. 662
• Parties: LACKEY v. INDUSTRIAL COMMISSION OF COLORADO et al. (two cases).
• Court: Colorado Supreme Court

249 P. 662

80 Colo. 112

LACKEY v. INDUSTRIAL COMMISSION OF COLORADO et al. (two cases).

Nos. 11592, 11593.

Supreme Court of Colorado

September 20, 1926

Rehearing Denied Oct. 18, 1926.

Department 2.

Error to District Court, Otero County; Samuel D. Trimble, Judge.

Separate proceedings under the Workmen's Compensation Act by W. E Jacks and J. W. Lawlor, claimants, opposed by G. W. Lackey employer. Judgments of the district court affirmed awards of the Industrial Commission in favor of the claimants, and the employer brings error. Cases consolidated on appeal.

Judgments reversed, with directions.

Clyde T. Davis and Fred A. Sabin, both of La Junta, for plaintiff in error.

John B Barnard, of Pueblo, and William L. Boatright, Atty. Gen., and Otto Friedrichs, Asst. Atty. Gen., for defendants in error.

DENISON J.

The case comes here from the district court of Otero county which affirmed awards of the Industrial Commission in favor of Jacks and Lawlor against Lackey for injuries received by the claimants while in the employ of Lackey.

We can find no substantial controversy in the evidence. Lackey was a farmer and made up his mind to build and operate a filling station in the town of Fowler. He procured a site for the purpose, and employed men by the day to prepare the ground by pulling down a building and to put up a filling station thereon. This was accomplished, and he went into the business of the filling station and continued it thereafter up to the time of the hearings in these matters. Jacks was hurt while pulling down the old building; Lawlor while putting up the filling station. More than four men were employed by Lackey about this business when each accident took place. By S. L. 1923, p. 751, § 9, par. (b)----

'The term 'employe' shall mean and include: * * * every person in the service of any other person, * * * under any contract of hire, express or implied, * * * but not including any persons * * * whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.'

The position of the plaintiff in error is that the employment of each of these claimants was casual and not in the usual course of trade, etc., of himself, their employer, and that therefore they were not employees within the terms of the act. Jacks was employed by the day, not exceeding six days in all. When he left Lackey would tell him when to come back. Casual is an antonym of regular; Jack's employment was irregular and therefore casual. Lawlor was employed to relay some cement floor or driveway, to be paid by the day. When hurt he was helping to lay shingles because rain prevented work on the cement job. By no process of reasoning can he be called a regular employee.

But even though casual, if the employee is engaged in the usual trade, business, etc., of his employer, he still is an employee within the meaning of the act. Was the preparation of the ground and the erection of the building for a filling station within this category? It is not claimed that it was farming. It is clear enough that if Lackey had been merely constructing the building without intention to use it in a new business the construction would not have been in the usual course of his trade or business. The real question then is: Is the construction of a building to be used by the builder in a business new to him within the usual course of that business? The defendants in error on this point cite State ex rel. Lundgren v. District Court, 141 Minn. 83, 169 N.W. 488, as parallel, but we do not think so. In that case the 'employer was engaged in the lumber and building material trade, and for the purpose of adding thereto a line of fuel constructed a shed in which to keep and store the new stock. * * * While the defendant was not a building contractor, nor engaged in specific work of that kind, the construction of the shed in question was in furtherance of its established business, a necessary part thereof, and we discover no sufficient reason for holding that it was outside of and beyond what is customary and usual in a situation of the kind. That should be the test in construing the statute.'

It will be observed that the decision is based upon the proposition that the...