Industrial Commission v. Moynihan , 94 Colo. 438 ( 1934 )

Mr. Justice Hilliard

delivered the opinion of the court.

A proceeding under the Workman’s Compensation Act before the Industrial Commission. On reference the finding was favorable to the claimant, but on review the commission ruled adversely. In the district court, whence this writ is prosecuted by the commission and employing corporation, the claimant prevailed, and the commission was ordered to determine the extent of disability and fix compensation.

It appears that claimant is an attorney, residing and having his office at Montrose; that the Oliver Power Company is a public utility corporation, operating an electric light and power plant at Paonia; that claimant was employed by the company on a monthly retainer, with per diem and expense allowance when engaged away from his office; that claimant’s duties consisted in counseling and advising generally with reference to the policy, business affairs and legal rights of the company, and in procuring franchises, rights of way, and certificates of public necessity and convenience; that some of the service rendered by claimant was of the character in which only a licensed attorney might engage, but some of it, as seems to be conceded, and of great import, could properly have been undertaken by a nonmember of the bar; that in the interest of extending its business, and shortly before the happening on which claimant bases his demand for compensation, the company required a certificate of convenience and necessity, and to that end it made application to the Public Utility Commission.; that hearing thereon was set for August 18, 1931, on which day, and the succeeding day, by direction of the company, claimant appeared for it and presented its cause before the commission; that at the conclusion of the hearing the commission took the matter under advisement, and the company, sensing the possibility of an adverse holding, directed claimant to make immediate preparation to institute a proceeding* in court in its behalf, to which claimant devoted himself in Denver until earlv afternoon of the next day, when he started for Montrose by automobile, where he was to conclude his work in that regard, and, if necessary, file suit in the district court; that on the way to Montrose, the car claimant was driving was accidentally overturned and he was seriously injured: that claimant’s sole mission on the trip to Denver, while there and when returning, was to serve the company pursuant to his general contract of employment. It further appears that the company is an employer of more than four employees, and is insured in the state compensation insurance fund; and that claimant is in general practice, conducting his office wholly apart from the company, and serving many clients.

Briefly, plaintiffs in error contend the court erred in holding claimant was an employee of the company, or, if an employee, in not holding he was a casual employee whose employment was not in the usual course of business of the company; and that he was an independent contractor. Order of presentation will not be observed, but in the course of our discussion the points will be determined.

By section 4383, subparagraph (b), C. L. 1921, amended, Session Laws, 1931, p. 819, it is provided that the term ‘ ‘ employee ’ ’ includes ‘ ‘ every person in the service of any person, association of persons, firm, private corporation, including any public service corporation, * * * under any contract of hire, express or implied, * * * but not including any persons who are expressly excluded from this act or whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.” Mainly, those “expressly excluded” are domestic servants and farm and ranch laborers. Subparagraph (c), §4382, C. L. 1921. In none of the provisions of the act is there language which expressly excludes members of the professions, attorney or other, if otherwise within the statute, from the enjoyment of its protecting purpose. There is authority to the effect that those equipped to render professional services, and doctors, nurses and lawyers are so considered, if especially employed in particular instances, are independent contractors and may not have relief hy virtue of compensation legislation. 1 Schneider Workmen’s Compensation Law (2d Ed.), p. 198; Matter of Benouf v. N. Y. C. R. R. Co., 254 N. Y. 349, 173 N. E. 218. In the Renouf inquiry the claimant was a nurse, and although she was engaged by the railroad company to render services to an injured employee, and “was, in a general sense, employed by the railroad company, she was not its employee. She occupied the position of an independent contractor following her own calling rather than that of one in the service of the employer.” The New York court observed, however, that “A distinction may be drawn between a special nurse and one who places her time and service at the call of her employer without regard to special cases.” Citing Matter of Bernstein v. Beth Israel Hospital, 236 N. Y. 268, 140 N. E. 694. We think the claimant here comes within the recognized distinction. He was employed by the power company regularly, and by the terms of the employment his time and services were subject to the call of his employer. Not only so, but the record shows that to the exclusion of all others he was called upon to serve as and whenever the company considered it had need for services he was qualified to render. Nor may it be said that the matter which engaged his attention when he suffered the accident, was the result of special employment. He represented the company generally, not specially, and in advocating its cause before the Utility Commission at an appointed time and for a particular certificate, and for compensation agreed to be paid at the time of his general engagement by the company, he was and continued to be a general employee. It was neither the first nor only time he had served the company in its quest for a certificate of necessity and convenience. That such certificates were not less essential to the ongoing of the company’s business than was the manufacture of its product, may not be questioned, and the employment of claimant to procure the necessary authority to do business, in the circumstances of the record, was not any more special than was the employment of a workman required to perform duties at the company’s power plant. Nothing in the terms of claimant’s employment precluded either party from terminating the relation without liability, and that is the controlling element. “The right to immediately discharge,” said Mr. Justice Denison, speaking for the court, “gives complete control.” Industrial Com. v. Bonfils, 78 Colo. 306, 241 Pac. 735. In further elucidation, the learned justice said: “By virtue of its power to discharge, the company could at any moment direct the minutest detail and method of the work. The fact, if a fact, that it did not do so is immaterial. It is the power of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor. ” We appreciate that in, the particular service to which the company called claimant from his home to Denver, the company likely trusted him to determine the strategy of approach and presentation, but to say his employment in the matter was special rather than general, or that he was independent of control in the sense he was not the company’s servant, w7ould not be warranted. The claimant was not an independent contractor.

We deem it unnecessary to dwell at length on the contention that claimant was a casual employee and that his employment was not in the usual course of the company’s business. What we have already said, and authorities now cited, justify our conclusion that the points are without merit. Comerford v. Carr, 86 Colo. 590, 284 Pac. 121; Hoshiko v. Industrial Com., 83 Colo. 556, 266 Pac. 1114; Lackey v. Industrial Com., 80 Colo. 112, 249 Pac. 662; Employers’ Mutual Ins. Co. v. Industrial Com., 74 Colo. 201, 219 Pac. 1078; Sonnenberg v. Berg’s Market (Mo.), 55 S. W. (2d) 494.

The trial court’s resolution has our approval. Let the order be that the judgment is affirmed.

Mr. Justice Bouck dissents.