American Radiator Co. v. Franzen

Supreme Court of Colorado

American Radiator Co. v. Franzen

254 P. 160, 81 Colo. 161

CourtSupreme Court of Colorado

DecidedMarch 14, 1927

DocketNo. 11,317.

StatusPublished

Cited by21 cases

This text of 254 P. 160 (American Radiator Co. v. Franzen) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Radiator Co. v. Franzen, 254 P. 160, 81 Colo. 161 (Colo. 1927).

Pincite

Opinion

Mr. Justice Denison

delivered the opinion of the court.

Franzen was awarded compensation against the Metropolitan Window Cleaning Company, primarily, and, secondarily against the American Radiator Company. The Metropolitan, company paid the award. The commission then changed its award and held that the radiator company was primarily liable. The district court affirmed this award and the radiator company brings error.

*162 The business of the Metropolitan company was window cleaning and other cleaning. It was employed by the radiator company, whose business was manufacturing and selling heating plants, to clean its windows twice a month, and sent Franzen, who was one of its regular employees, to do the work and in doing it he was injured. The radiator company had insured its liability with the Ocean Accident and Guaranty Corporation, its co-plaintiff in error. The only question is whether Franzen was an employee of the radiator company. We think he was not. The claim rests on C. L. § 4423, § 49 of Workmen’s Compensation Act: “Any person * * * operating or engaged in or conducting any business by * * * contracting out any part or all of the work thereof to any * * * contractor * * * shall * * * be an employer * * * and shall be liable * * * to pay compensation for injury * * * to said * * * contractors * * * and their employes.”

The business of a person, as the word is here used, is that calling which he pursues for livelihood or gain. Webster. Washing windows is not a part of the business of manufacturing and selling heating systems. * Franzen, then, was not the employee of the American Radiator Company.

The Attorney General agrees with and concedes the above argument, but suggests that since the award has been satisfied the question is moot; however, since the record shows an award against the radiator company, we think that it has a right to have this apparent liability removed.

Judgment reversed with directions to set aside the commission’s award.

Mr. Chief Justice Burke, Mr. Justice Whiteord and Mr. Justice Sheaeor concur.

*

For an example of what is a part of a business, see Industrial Com. v. Continental Co., 78 Colo. 399, 242 Pac. 49.

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Mr. Justice Denison

delivered the opinion of the court.

Franzen was awarded compensation against the Metropolitan Window Cleaning Company, primarily, and, secondarily against the American Radiator Company. The Metropolitan, company paid the award. The commission then changed its award and held that the radiator company was primarily liable. The district court affirmed this award and the radiator company brings error.

*162 The business of the Metropolitan company was window cleaning and other cleaning. It was employed by the radiator company, whose business was manufacturing and selling heating plants, to clean its windows twice a month, and sent Franzen, who was one of its regular employees, to do the work and in doing it he was injured. The radiator company had insured its liability with the Ocean Accident and Guaranty Corporation, its co-plaintiff in error. The only question is whether Franzen was an employee of the radiator company. We think he was not. The claim rests on C. L. § 4423, § 49 of Workmen’s Compensation Act: “Any person * * * operating or engaged in or conducting any business by * * * contracting out any part or all of the work thereof to any * * * contractor * * * shall * * * be an employer * * * and shall be liable * * * to pay compensation for injury * * * to said * * * contractors * * * and their employes.”

The business of a person, as the word is here used, is that calling which he pursues for livelihood or gain. Webster. Washing windows is not a part of the business of manufacturing and selling heating systems. * Franzen, then, was not the employee of the American Radiator Company.

The Attorney General agrees with and concedes the above argument, but suggests that since the award has been satisfied the question is moot; however, since the record shows an award against the radiator company, we think that it has a right to have this apparent liability removed.

Judgment reversed with directions to set aside the commission’s award.

Mr. Chief Justice Burke, Mr. Justice Whiteord and Mr. Justice Sheaeor concur.

*

For an example of what is a part of a business, see Industrial Com. v. Continental Co., 78 Colo. 399, 242 Pac. 49.

Montaner, en su carácter de Administrador del Fondo del Seguro del Estado, recurrente v. Comisión Industrial de Puerto Rico, compuesta de los Sres. M. León Parra, Presidente, y F. Paz Granela y Juan M. Herrero, Comisionados Asociados, demandada y Juan de Dios Rivera, peticionario ante la Comisión

57 P.R. Dec. 272 (Supreme Court of Puerto Rico, 1940)

Sechler v. Pastore

84 P.2d 61 (Supreme Court of Colorado, 1938)

Cummings v. Union Quarry & Construction Co.

87 S.W.2d 1039 (Missouri Court of Appeals, 1935)

Fox v. Fafnir Bearing Co.

139 A. 778 (Supreme Court of Connecticut, 1928)

Index Mines Corp. v. Industrial Commission

259 P. 1036 (Supreme Court of Colorado, 1927)

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254 P. 160, 81 Colo. 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-radiator-co-v-franzen-colo-1927.

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