Smart v. Radetsky

• Decision Date: 27 May 1929
• Docket Number: 12114.
• Citation: 278 P. 609,86 Colo. 93
• Parties: SMART et al. v. RADETSKY et al. HAZLETON et al. v. SAME.
• Court: Colorado Supreme Court

278 P. 609

86 Colo. 93

SMART et al. v. RADETSKY et al.

HAZLETON et al. v. SAME.

No. 12114.

Supreme Court of Colorado

May 27, 1929

Separate proceedings under the Workmen's Compensation Act by L Forest Smart and by R. M. Hazleton, opposed by M. S Radetsky, employer, doing business under the firm name and style of the Colorado Iron & Metal Company, and the Zurich General Accident & Liability Insurance Company, Limited. To review an award of compensation by the Industrial Commission claimant and insurer bring separate proceedings in error.

Affirmed.

Appeal from District Court, City and County of Denver; Wilbur M Alter, Judge.

L. Ward Bannister, William T. Wolvington, and Kenneth M. Wormwood, all of Denver, for plaintiff in error Zurich General Accident & Liability Ins. Co., Limited.

Frank C. West, of Denver, for plaintiffs in error Smart and Hazleton.

William L. Boatright, Atty. Gen., and Otto Friedrichs, Asst. Atty. Gen., for defendant in error Industrial Commission.

Quiat, Ginsberg & Quiat, of Denver, for defendant in error Radetsky.

BUTLER J.

The Industrial Commission awarded compensation to L. Forest Smart and R. M. Hazleton upon their separate claims against M. S. Radetsky and the insurance carrier, Zurich General Accident & Liability Insurance Company, Limited. The claimants were injured while in the employ of Radetsky. In the district court the two cases were consolidated and the awards were affirmed. Both the claimants and the insurance company contended before the commission and in the district court that the risk was not covered by the insurance policy, and therefore that the insurance company is not liable at all, but that Radetsky, not having taken out insurance covering the risk, is required to pay 50 per cent. additional compensation, as provided in C. L. § 4401, as amended in 1923 (S. L. c. 201, § 7). The commission and the court having ruled against them, they renew the contention in this court.

The schedule of statements, made a part of the insurance policy, contains the following clauses:

'3. (a) Locations of all Factories, Shops, Yards, Buildings, Premises, Mines or other Work-Places of the Assured to which this policy shall apply, by County and Town or City, with street and numbers, are as follows: 438 Larimer Street, Denver, Colo. and elsewhere in the State of Colorado.'

'3. (b) General Business Operation of Assured at the places named in part (a) hereof including all operative management and superintendence, the making of repairs and ordinary alterations for the maintenance of Assured's buildings and plants at said places in good condition and the repair and renewal of Assured's existing mechanical equipment therein, as follows: Junk dealers--Shop and outside (excluding building wrecking) including Drivers, Chauffeurs and their helpers No. 8262.'

'3. (i) Other Business Operations.--If the Assured does any work at the places named in part (a) hereof other than as described in part (b) the policy shall cover such work and the Assured shall pay therefor a premium computed at the Company's rates filed with and approved by the Industrial Commission and applicable to said work.'

The same provisions were in policies issued to Radetsky by the Zurich Company for several years prior to the issuance of the policy before us. During all that time, and for years prior thereto, Radetsky was engaged in the same business on a large scale, and carried on his operations in the same manner, which, according to the testimony of several witnesses, is the customary manner in which all large junk dealers in this state carry on their business. Buying abandoned plants of machinery and dismantling, or junking, them for the purpose of securing the iron and other metals and the machinery, constitute a large part of the business.

An abandoned sugar plant at Lamar was for sale. About 85 per cent. of its value was in iron and other metals. In the ordinary course of his business, Radetsky bought it, agreeing to remove it, building and all, from the place where it stood. The building that inclosed the machinery was constructed principally of steel, concrete, and brick. A metal tank was fastened to the second floor with angle irons. Smart was taking one of the angle irons off the tank preparatory to removing the tank from the building, and while thus employed he fell through the...