Aetna Life Ins. Co. v. Industrial Commission of Colorado

• Decision Date: 28 March 1927
• Docket Number: 11626.
• Citation: 81 Colo. 233,254 P. 995
• Parties: AETNA LIFE INS. CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

254 P. 995

81 Colo. 233

AETNA LIFE INS. CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 11626.

Supreme Court of Colorado, En Banc.

March 28, 1927

Rehearing Denied April 18, 1927.

Error to District Court, City and County of Denver; Julian H Moore, Judge

Proceeding under the Workmen's Compensation Act by Laura C. Oakley for the death of her son, Lyle Oakley, opposed by Henry L Lowell, employer, and the AEtna Life Insurance Company insurer. An award of compensation was affirmed by the district court, and insurer and employer bring error.

Affirmed.

Adams J., dissenting.

Cook & Burke, of Denver, for plaintiffs in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst. Atty. Gen., for Industrial Commission.

Philip S. Van Cise and Kenneth W. Robinson, both of Denver, for defendant in error Laura C. Oakley.

Gillette & Clark Leory J. Williams, William E. Hutton and J. P. Nordlund, all of Denver, amici curiae.

DENISON, J.

Laura C. Oakley was awarded compensation by the Industrial Commission for the death of her son, Lyle Oakley. The district court affirmed the award, and the insurance carrier and the employer bring error.

The deceased was a farm hand, and was sent by his employer to work for a day on a neighbor's farm. While returning by the most feasible route, with a team of horses but without a wagon, crossing a high rocky hill near a wire fence, he and the horses were killed by lightning. He was so near the horses that one of them fell on him, and he was so found.

The sole question for us is whether the death was one arising out of his employment. C. L. § 4389.

In Hassell I. W. Co. v. Industrial Commission, 70 Colo. 386, 201 P. 894, an award for death by lightning was sustained because the victim was working on a steel bridge over water, and it was said (page 390) that because of that the employment involved special risk, and so there was a causal relation between the employment and the death.

A majority of the court thinks that, since Oakley's employment required him to be in a position where the lightning struck him, there was a causal relation between employment and accident, so that the latter may be said to arise out of the former and therefore the judgment should be affirmed. The writer, however, is of the opinion, in which the Chief Justice concurs, that the mere fact that duty calls the employee to the place where he is killed or injured, is not enough; yet recognizes that the precedents in this state and in the Supreme Court of the United States extend even beyond limits which would include the present case and so concurs in the result reached by the majority.

For analogous cases see Industrial Com. v. Pueblo Auto Co., 71 Colo. 425, 207 P. 479, 23 A.L.R. 348, Industrial Com. v. Hunter, 73 Colo. 226, 214 P. 393, and State Compensation Insurance Fund v. Industrial Com., 80 Colo. 130, 249 P. 653, decided at the present term.

Former opinion withdrawn.

Judgment affirmed.

ADAMS, J., dissents.

BURKE, C.J. (concurring specially).

The statute here under consideration provides:

'The right to the compensation provided for in this act * * * shall obtain in all cases * * * where the injury or death is proximately caused by accident arising out of and in the course of his employment, * * *.' Section 4389, p. 1235, C. L. 1921 (Laws 1919, p. 705, § 15).

Whether a given accident arises 'in the course of' an employment is usually answered with ease; whether it arises 'out of' the employment is often, as here, answered with difficulty.

Some general rule of interpretation, furnishing a reasonable guide to those...