Rhodes v. Industrial Com'n, 13929.
| Decision Date | 05 October 1936 |
| Docket Number | 13929. |
| Citation | 61 P.2d 1035,99 Colo. 271 |
| Parties | RHODES et al. v. INDUSTRIAL COMMISSION et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 2, 1936.
Error to District Court, Park County; James L. Cooper, Judge.
Proceeding under the Workmen's Compensation Act by Mrs. Maye Henderson for the death of her husband, opposed by Carey W Rhodes and the Robbins Realty Trust. To review a judgment of the District Court sustaining an award of the Industrial Commission, Carey W. Rhodes and the Robbins Realty Trust bring error.
Affirmed.
John M. Boyle and Richard McKinley, both of Salida for plaintiffs in error.
Paul P. Prosser, Atty. Gen., Louis Schiff, Asst. Atty. Gen., and F. E. Dickerson, T. J. Morrissey, and C. D. Bromley, all of Denver, for defendants in error.
This is a workmen's compensation case. Plaintiffs in error are hereinafter referred to as the Trust and Rhodes, respectively, and the latter's wife as Mrs. Rhodes. Defendants in error are referred to as the Commission and Mrs. Henderson, respectively, and the latter's deceased husband as Henderson.
Henderson was killed by a rock slide while placer mining on property owned by the Trust, which carried no insurance. Mrs. Henderson filed her claim with the Commission, which found for her. The district court sustained the award and to review that judgment plaintiffs in error prosecute this writ. Their contentions here are: (1) The Trust is not a party; (2) one Hitchings, upon whose conduct as agent for the owners Mrs. Henderson relies, was not shown to be such agent; (3) no evidence brought plaintiffs in error within the provisions of section 4423, C.L.1921, the statute here in question.
1. The Trust is a common-law trust, created in 1932 by Rhodes and Mrs. Rhodes. They were sole trustees and each had all the power of both. However, Rhodes was in fact the actual manager and handled the property as his own. His Chicago address and that of the Trust were the same. The Trust appeared by counsel in all proceedings above mentioned, and the claim that it was not properly made a party is raised here for the first time. If otherwise good, it comes too late. People v. Drug Co., 10 Colo.App. 507, 51 P. 1010.
2. It is clear that, for present purposes, Rhodes is the Trust. It is said that Hitchings' agency was established by his own testimony, contrary to the rule that this cannot be done by mere declarations of the alleged agent. But it was not. He testified to the facts from which the agency appeared. This is always permissible. Wales v. Mower, 44 Colo. 146, 96 P. 971.
Under Rhodes' instructions Hitchings put up signs on the property, made agreements with many individuals and outfits to mine it, fixed the royalties payable, of which he received one-third for his services, generally supervised operating activities, and saw that operators complied with the law. Agency may be established by the conduct of the principal and the alleged agent. Silver M. M. Co. v. Anderson, 51 Colo. 298, 117 P. 173. We think the agency clearly established.
3. If this judgment be affirmed, it must be because plaintiffs in error were 'conducting' the business of placer mining on the property in question within the terms of said section 4423, which, so far as applicable, reads: '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, sub-lessee, contractor or sub-contractor, shall * * * 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, sub-lessees, contractors and sub-contractors and their employes.'
We doubt not that by this section the General Assembly intended to cover such transactions as the one Before us, although, as too often happens, that intent is somewhat obscured by the dust of superfluous language. If the Trust was conducting this business, it was doing so by some sort of contract, and the relation of employer and employee existed simply because the lawmakers, having full power to so define it for the purposes of the act, said so. Industrial Comm. v. Continental Inv. Co., 78 Colo. 399, 242 P. 49.
Every form of lease and every variety of employment rests upon contract. The Trust says: First, Henderson...
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