
    No. 13,547.
    Industrial Commission et al. v. Montgomery.
    (37 P. [2d] 532)
    Decided September 17, 1934.
    Rehearing denied November 13, 1934.
    Mr. Paul P. Prosser, Attorney General, Mr. M. S. Ginsberg, Assistant, Mr. Emory L. 0 ’Connell, for plaintiffs in error.
    Mr. Horace N. Hawkins, for defendant in error.
    
      In Department.
    
   Mr. Justice Bouck

delivered the opinion of the court.

The plaintiff in error, Jacob Meininger, claims compensation under tbe Workmen’s Compensation Act. Tbe defendant in error, William L. Montgomery, is the alleged employer. Tbe Industrial Commission having awarded compensation, Montgomery commenced an action in tbe district court, which set aside tbe award. Meininger asks review and reversal.

Tbe accident happened on tbe night of September 11, 1933, when tbe claimant was driving a motor truck that overturned and injured him. He filed tbe requisite notice with tbe commission on October 4. Seventeen days later Montgomery filed tbe following “objections”: “1. That it is not shown * * * that * * * Montgomery * * * was subject to [tbe provisions of tbe Act] on * . * * tbe date of tbe alleged injury. 2. * * * that * * * [Montgomery] was not regularly employing * * * four employees, * * * and that therefore [tbe] commission could in no event have any jurisdiction to award compensation * * * against [him]. 3. [Montgomery] admits that * * * [claimant] was injured, but as to tbe nature of tbe injury or tbe extent thereof [Montgomery] is without information. Wherefore [Montgomery] prays that either be or bis attorney be afforded tbe opportunity of being present at tbe bearing set * * * and the opportunity to cross-examine such witnesses as might be offered * * * and to submit such testimony in bis own behalf as might be necessary and pertinent.”

Hearings were bad before a referee of tbe commission on December 20 and 26, 1933. Montgomery was present on both dates in person and by attorney, but introduced no evidence. According to tbe record tbe only evidence introduced was tbe testimony of tbe claimant and that of tbe physician who attended him after tbe accident. Tbe physician’s testimony bore only upon tbe nature and tbe extent of tbe injury, concerning which no point is raised herein. Consequently, tbe case must here be judged wholly on tbe testimony of tbe claimant himself.

On December 28, 1933, the referee made an award of compensation.

A petition for review was duly filed by Montgomery, alleging: “1. That it is not shown by the evidence herein that [Montgomery] was or is subject to the compensation law * * *. 2. That it is not shown that [Montgomery] was hiring * * * four or more [employees]. 3. That the evidence # * * does not show that the claimant was working for [Montgomery] in such manner as to constitute him an employee * * *. 4. That the referee is without jurisdiction and without power to make an award against [Montgomery], and from the showing made both the referee and the Industrial Commission of Colorado are without jurisdiction and power to make an award against [Montgomery] for the reason that there is no showing and no evidence upon which to base or predicate such an award. ’ ’

The Industrial Commission by its “findings of fact and award” of January 17, 1934, affirmed the award of its referee.

Montgomery then filed another petition for review, substantially identical with that interposed to the award made by the referee. The commission by its “supplemental award” of February 2, 1934, affirmed the award. On February 21, 1934, this case was brought in the district court.

The injury itself being admitted, the two facts remaining to be proved before the commission were that Montgomery was the employer of at least four men, and that the claimant was one of those employees.

With obviously sincere insistence, counsel for Montgomery contends that the evidence adduced before the commission was insufficient to sustain the award, and that the lower court was right in setting the award aside. The argument of counsel is this: Though the claimant said on direct examination that he was employed by Montgomery and that Montgomery employed three other drivers and a clerk, he said on cross-examination that he and.the other alleged employee's “worked for the Highway Coal Company,” and therefore, Montgomery’s counsel says, Montgomery was not the employer. We do not draw the same inference from the claimant’s words as counsel does. . The statements that Montgomery had employed the claimant and the other four persons were made in unqualified terms. Those statements were not retracted unless, the. cross-examination he considered ¡as. a necessarily.implied retraction. We do.not think such is the- case. It is a matter of common knowledge: that many natural persons do business under a corporate-name, .though thére is no incorporation. There may.be,.strong reasons.for. adopting that course. For instance,- the individual, operator, may, for publicity- or other- purposes, actively '.encourage, the designation of himself, by .¡what resembles .a corporate name, in order to emphasize a particular .brand or title which he or some predecessor, at the same 'plant has bestowed upon his ■product. -■ When, questioned as to his knowledge whether the Highway Coal Company was or was not a corporation, .the claimant .unhesitatingly .responded that he did inot know, It.'may be, .for all we can tell from the record, that Montgomery was the operator of the mine, but desired to-have .his. coal become known as “Highway Coal,” instead of Montgomery’s .coaL In view of the loose thought and loose expression common to the average layman, such as the claimant manifestly is, Montgomery’s mine might easily be thought, of and spoken of as the “Highway Coal Company.” No effort was made by Montgomery to prove even that there was a corporation, either de jure or de facto, bearing the aforesaid corporate name. The burden of attacking the prima facie proof against Montgomery was upon the latter; he failed to sustain it. Moreover, Montgomery might have had an arrangement with a corporation of the name, as its lessee or otherwise, in a manner that would still make him the responsible employer. This could be true even if for business or personal reasons he should use, with or "without authority from the corporation, its corporate name.

The commission was within its rights, as a fact-finding body, in finding upon the evidence actually before it that the employer of the claimant and of the other four alleged employees was Montgomery. The judgment of the district court must therefore be reversed, with directions to return the record of the commission to the latter with an affirmance of the commission’s award.

Judgment reversed with directions.

Mr. Justice Butler, sitting for Mr. Chief Justice Adams, and Mr. Justice Hilliard concur.  