Ontario Min. Co. v. Industrial Com'n

• Decision Date: 17 June 1929
• Docket Number: 12335.
• Citation: 280 P. 483,86 Colo. 206
• Parties: ONTARIO MINING CO. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

280 P. 483

86 Colo. 206

ONTARIO MINING CO. v. INDUSTRIAL COMMISSION et al.

No. 12335.

Supreme Court of Colorado, En Banc.

June 17, 1929

Rehearing Denied Sept. 16, 1929.

Error to District Court, Boulder County; Robert G. Smith, Judge.

Proceeding under the Workmen's Compensation Act by B. Sceymour Lawson, claimant, opposed by the Ontario Mining Company and another. An order of the Industrial Commission granting as award was affirmed by the District Court and the mining company brings error.

Affirmed.

John R. Wolff, of Boulder, for plaintiff in error.

Rinn &amp Connell, of Boulder, for defendant in error Lawson.

MOORE J.

Parties are referred to as they appear in the lower court. The district court affirmed an award of the Industrial Commission allowing compensation to claimant, B. Sceymour Lawson, in the sum of $3,056.57, for the loss of an eye, which occurred September 4, 1926, and arose out of and in the course of his employment.

The record discloses that plaintiff the Ontario Mining Company, on the 7th day of August, 1926, contracted with plaintiff William Ebersole to construct an 'upraise' on its mining property; that Ebersole employed claimant Lawson and another to assist him in the performance of this work. While so working the accident occurred. A settlement agreement, without approval of the Industrial Commission, was prepared and executed between the Ontario Mining Company, Ebersole, and Lawson, whereby Ebersole agreed to pay $500 in full settlement of all claims arising out of the accident, and the Ontario Mining Company guaranteed such payment. Two hundred dollars was paid thereunder. Subsequently, and on June 28, 1927, a claim was filed by Lawson with the Industrial Commission, wherein it appeared that the 'name of my employer at time of injury was William Ebersole, leasing on the Ontario Mining Co., Caribou Colorado.' Thereafter claimant offered to agree, or agreed, that, if the settlement contract was performed by the plaintiffs, this claim would be dismissed. It was not in fact dismissed.

On July 26, 1927, upon a hearing, the plaintiff corporation not appearing, the Industrial Commission awarded compensation to the claimant and against both plaintiffs. A rehearing was asked for on two grounds: (1) That the commission had no jurisdiction; (2) that a fraud had been practiced on the plaintiffs, which would warrant the setting aside of the award. A rehearing was granted and had as to these two points. While the rehearing was limited by the Industrial Commission to the foregoing matters, as a matter of fact evidence was introduced by the plaintiffs on the merits.

At no time has it been contended that the accident did not arise out of and in the course of claimant's employment. Upon this hearing the commission found that it had jurisdiction under section 49 of the Workmen's Compensation Act (section 4423, C. L. 1921), and that all parties were equally at fault on the fraud charge, for the reason that the claimant represented that he would dismiss the claim for compensation and failed so to do, and the plaintiffs because they induced claimant to sign a settlement agreement without the approval of the Industrial Commission. The original award was approved, another petition for review was filed, and on May 12, 1928, the final award was signed.

The district court reversed the award as to plaintiff Ebersole, and affirmed it as to the plaintiff the Ontario Mining Company, which now seeks a review thereof. We shall refer to the assignments of error as grouped in plaintiff's brief.

1. Plaintiff contends that: 'All proceedings of defendant commission herein against plaintiff in error, and its awards based thereon, are void ab initio, because no notice claiming compensation, which would confer jurisdiction of the proceedings on defendant commission, was ever filed by defendant Lawson against plaintiff corporation as his employer.'

Assuming this to be true, plaintiff has waived its right to such an objection by filing a petition for rehearing with the Industrial Commission, by participating in such rehearing, and by introducing testimony on the merits. Indust. Com. v. Employers' Corp., 78 Colo. 267, 241 P. 729.

2. Plaintiff claims that the failure of claimant to file a notice with the Industrial Commission within six months after the accident bars his recovery. Section 84 of the Workmen's Compensation Act, as amended by Session Laws of 1923, p. 745, § 15, provides: 'The right to compensation and benefits, as provided by this act, shall be barred unless within six months after the injury, or within one year after death resulting therefrom, a notice claiming compensation shall be filed with the commission. This limitation shall not apply to any claimant to whom compensation has been paid.'

The record discloses that the plaintiff corporation guaranteed the payment of $500 to claimant in full satisfaction for 'all claims, demands, damages, actions and causes of action whatsoever, including those such as have grown out of or arisen from injuries received by second party [Lawson] while in employment of William I. Ebersole.' Pursuant to this agreement plaintiff caused to be paid to claimant the sum of $200, $50 of which was paid on July 11, 1927. The claim was filed on June 26, 1927. Plaintiff contends that the failure to file the claim within a period of six months is a condition precedent to the jurisdiction of the Industrial Commission. To so hold would be to read out of the statute the words, 'This limitation shall not apply to any claimant to whom compensation has been paid.' This would be an improper construction.

Plaintiff further contends that the payments so made were not made as 'compensation,' but in satisfaction of its common-law liability. The contract in question containing a blanket release from all liability arising out of the accident to the claimant, both the claimant and plaintiff being subject to the jurisdiction of the Industrial Commission, and the commission treating said amount so paid as compensation and deducting same from its award, we do not look with favor upon this hyper-technicality advanced by plaintiff, the purpose of which is to avoid liability. The claimant was in fact paid or compensated in part for his injury. Such being the case, the exception to the limitation is here applicable. Industrial Com. v. Globe Co., 74 Colo. 52, 218 P. 910; Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P. 464.

3. Plaintiff contends that the findings and awards of the commission, being based upon ex parte proceedings and without notice to it, are void. Plaintiff, having filed its petition for a rehearing, having been granted a rehearing, and having introduced testimony on the merits at such rehearing, has waived its right to object to the preliminary findings and awards of the commission. Indust. Com. v. Employers' Corp., supra.

4. Plaintiff contends that it was not an employer within the terms of the Compensation Act, and therefore the commission's award is void. The reason given is that section 4424, C. L. 1921, applies to the facts herein and is controlling, and section 4423 is inapplicable.

Section 4424 provides: 'Every person, company or corporation, that owns any real property or improvements thereon and that contracts out any work done on and to said property to any contractor, subcontractor, person or persons, who shall hire or use four or more employees or workmen (including himself if working thereon) in the doing of such work, shall be deemed to be an employer under the terms of this act.'

Section 4423 provides: '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.'

The claim is that, the plaintiff being the owner of real property and contracting for work to be done on and to said property and the contractor in the performance of said work having hired and used only three employés, including himself, the plaintiff owner is not an employer, and not within and therefore not subject to the provisions of the Workmen's Compensation Act (C. L. § 4375 et seq., as amended). If the contract in question provided solely for the doing of work 'on and to said property,' there might be some merit in plaintiff's assertion. The contract provided that a shaft in plaintiff's mine be raised 'from the 140-foot level of the Grant county shaft to the surface, a distance of approximately 160 feet, more or less.' It further provided the dimensions thereof and specifications in connection therewith. This contemplated work not only to be done on and to plaintiff's...