Booher v. Las Animas County School Dist. R-88, R--88

• Decision Date: 23 November 1971
• Docket Number: R--88,No. 71--103,71--103
• Parties: Shirley Kay BOOHER, Plaintiff-Appellee, v. LAS ANIMAS COUNTY SCHOOL DISTRICTet al., Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 104

491 P.2d 104

30 Colo.App. 233

Shirley Kay BOOHER, Plaintiff-Appellee, v. LAS ANIMAS COUNTY SCHOOL DISTRICT R--88 et al., Defendants-Appellants.

No. 71--103.

Colorado Court of Appeals, Div. I.

Nov. 23, 1971.

Laurence A. Ardell, Pueblo, for plaintiff-appellee.

Alious Rockett, Feay Burton Smith, Jr., Francis, L. Bury, Denver, for defendants-appellants Las Animas County School District R--88 and Division of The State Compensation Insurance Fund in the Dept. of Labor and Employment.

Duke W. Dunbar, Atty. Gen., John. P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendants-appellants Industrial Comm. of Colo. and Director of Division of Labor in the Dept. of Labor and Employment.

DUFFORD, Judge.

This case constitutes an appeal from a judgment of a district court setting aside the findings of the Industrial Commission and modifying a disability award made by the Commission to the claimant and plaintiff-appellee, Shirley Kay Booher.

In this appeal, it is no longer disputed by the School District nor by the Commission that the claimant was injured while driving a school bus, and that her injuries arose out of and were incurred during the course of her direct employment by the School District. Additionally, the record establishes that, prior to the date of the accident in which the claimant was injured, her father, Sim Noe, had entered into a written contract with the appellant School District providing for the transportation of school children. With respect to this contract, the Industrial Commission specifically found that, at the time the contract was entered into, it was contemplated by the parties to the contract that the vehicle which would be used for transporting school children would be driven by more than one driver 'and be driven within a family unit.' The Industrial Commission further found that it was contemplated by the parties that the claimant would be a driver of the school bus which was to be operated under the terms of the contract, And that the compensation which was to be paid under the terms of such contract was the amount of $300 per month. However, in view of testimony by the claimant that she received no monetary compensation when she drove the school bus, and because it was established that the $300 payment made under the contract was paid to the father, Sim Noe, the Commission found that the claimant received no compensation for her services. The Commission concluded from these facts that the rate of compensation for claimant's services was nothing and that, therefore, the claimant was entitled only to the minimum award allowable under the provisions of 1965 Perm.Supp., C.R.S.1963, 81--12--2.

Upon review, the district court held that applicable law did not support the Commission's entry of a minimum award in favor of the claimant. It was the determination of the district court that the claimant's award should have been based on compensation at the rate of $300 per month, or, as reflected in terms of an average weekly wage, the amount of $69.22 per week. These determinations of the district...