Opinion
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colo.
Maynes & Anesi, James C. Anesi, Durango, for petitioner.
Hamilton, Sherman, Hamilton & Shand, E. Bentley Hamilton, Durango, for respondent A & L Coors Co.
COYTE, Judge.
Louis L. Smith filed a claim for workmen's compensation in connection with injuries received from an accident which occurred while he was doing construction work on premises occupied by A & L Coors Company (Coors). After a hearing, the referee denied benefits on the grounds that claimant was not employed by Coors; that the remodeling project was not part of the regular business of Coors; and that Coors was not liable as an owner of real property who contracted out work to be done on such property. The Industrial Commission adopted the findings of fact of the referee, affirmed his order, and claimant brought this petition for review. We affirm the order of the Industrial Commission.
The record discloses that Coors is engaged in the business of selling beer at wholesale. Coors entered into a written contract with one Eugene Salmine for the purpose of remodeling premises occupied by it. Salmine hired Smith as a carpenter's helper and the injury occurred when Smith fell from a ladder during the course of his work.
I.
Claimant contends the Commission erred in its conclusion that he was not an employee of Coors under C.R.S1963, 81--2--7(2), which defines the term 'employee' as,
'Every person in the service of any person, association of persons, firm, private corporation, including any public service corporation, personal representative, assignee, trustee, or receiver, under any contract of hire, express or implied . . ..'
The Industrial Commission found that claimant was an employee of Salmine and that Salmine was an independent contractor working for Coors. Therefore, the Commission concluded that there was no employment relationship between Coors and claimant. Claimant argues that both he and Salmine were employees of Coors. We disagree.
In Brush Hay and Milling Co. v. Small, 154 Colo. 11, 388 P.2d 84, the court, quoting from Industrial Commission v. Hammond, 77 Colo. 414, 236 P. 1006, set forth the following criteria for determining when one is an independent contractor for the purposes of the workmen's compensation act:
"Each case must be decided upon its own facts, and When these are in dispute . . . the finding of the commission is final. Among the factors More or less controlling are: Does the workman give all or only a part of his time to the work? Does the contract contemplate labor on the job, or the completion of it, or some portion of it? Has the laborer or the employe (sic) control of the details? Which may employ, control, and discharge assistants? Which furnishes the necessary tools and equipment? May either terminate the employment without liability to the others? Is compensation measured by time, or by the piece, or by lump sum for the entire task? Of these the most important, in determining the main question, is the right of either to terminate the relation without liability. Where such right exists the workman is usually a servant. Where it does not exist he is usually a contractor. The measure of compensation is also important, for where it is based upon time or piece the workman is usually a servant and where it is based upon a lump sum for the task he is usually a contractor. Where the employment is general, as opposed to one for the completion of a given task according to plan, price, and terms agreed upon, the relation of master and servant is presumed, in the absence of proof to the contrary." (Emphasis is original.)
In the Small case the court added as an additional factor the 'relative nature of the work test' which it described as follows:
". . . the character of the claimant's work or business--how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on--and its relation to the employer's business, that is, how much it is a regular part of the employer's regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job."
In the instant case, the record discloses that Salmine entered into a written contract for a fixed price to perform construction and remodeling work on premises occupied by Coors. Salmine had control of the manner in which the work was performed and the employees worked under his direction. The testimony further showed that Salmine had performed similar work for Coors in the past and such relationships terminated upon completion of a particular project. In addition, the remodeling and construction work was not part of the regular business of Coors. Finally, the testimony was conflicting on the question whether the relationship between Salmine and Coors could be terminated without liability. Application of the tests set out above to these facts supports the findings of the commission that Salmine was an independent contractor working for Coors and that claimant was an employee of Salmine and not an employee of Coors.
II.
Claimant next conteds that Coors is liable for workmen's compensation benefits as a constructive employer under the 'contracting out' provisions of the statute. C.R.S.1963, 81--9--1(1). In Pioneer Construction Co. v. Davis, 152 Colo. 121, 381 P.2d 22, the court said that this provision of the statute does not come into operation unless the work that was contracted out is part of the regular business of the party who sought to be bound as a constructive employer. Here, the independent contractor, Salmine, was performing remodeling construction work for Coors, whose regular business is the wholesale distribution of beer. Accordingly, the Industrial Commission correctly ruled that Coors was not a constructive employer under C.R.S.1963, 81--9--1(1). See Meyer v. Lakewood Country Club, 122 Colo. 110, 220 P.2d 371; Flake Motors v. Huskins, 128 Colo. 414, 262 P.2d 736.
III.
Claimant next contends that Coors is liable under C.R.S.1963, 81--9--2(1), which statute operates to place workmen's compensation liability on owners of real property who contract out work done on that property to a contractor employing four or more persons.
The referee found that there was no evidence in the record to show that Coors was the owner of the land in question. We have examined the record and find therein no evidence indicating that Coors owned the premises upon which the accident occurred.
Claimant contends that the referee and the commission erred by refusing to accept into evidence a deed which was attached to a brief submitted after the conclusion of the hearing. This contention is without merit. There is no connection shown between the property described in the deed and the place of the accident.
Even if the deed had probative value, it would have been error for the referee and the commission to consider evidence submitted subsequent to the hearing because such action would have been a denial of Coors' right to inspect the deed and pursue cross-examination on the issue of ownership. Puncec v. Denver, 28 Colo.App. 542, 475 P.2d 359.
The statute also requires that in addition to ownership four or more employees must be engaged in the construction work. The referee found on conflicting evidence that the construction and remodeling work was performed by Salmine, claimant, and one other person. We are bound by this finding of the Commission. Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858.
Thus, since claimant failed to show that Coors was the owner of real property or improvements thereon and also failed to prove that four or more persons were engaged in the construction work, Coors was not liable under C.R.S.1963, 81--9--2(1).
The order is affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.