City and County of Denver v. Lee, 23435
| Decision Date | 17 February 1969 |
| Docket Number | No. 23435,23435 |
| Citation | 450 P.2d 352,168 Colo. 208 |
| Parties | CITY AND COUNTY OF DENVER, and State Compensation Insurance Fund, Plaintiffs in Error, v. Benjamin M. LEE, III, and Industrial Commission of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for plaintiffs in error.
Berman, Lilly, Friedrichs & Young, J. Bayard Young, Denver, for defendant in error, Benjamin M. Lee, III.
Duke W. Dunbar, Atty. Gen., John P. Moore and Peter L. Dye, Asst. Attys. Gen., Denver, for defendant in error, Industrial Commission of Colorado.
This is a workmen's compensation case in which the defendant in error Lee was the claimant. Claimant, a police officer, sustained a back injury while playing on the Denver Police Department basketball team, and the question is whether he was then within the scope of his employment. The Industrial Commission found that he was and the district court affirmed this determination. We also affirm.
The Denver Police Protective Association (here called the 'association') was a sponsor of the basketball team upon which claimant was a member. The association was and is composed entirely of members of the Denver police force. Membership in the association is voluntary and 90% To 95% Of the police officers belong to it. It is incorporated and has as its purpose to promote in various ways matters for the benefit of the police department and its members. The association and the police department are completely separate organizations. The Chief of Police testified that the reason for linking the basketball team with the association was that the latter provided the funds necessary to pay for the activities of the team. He further testified that the police department was co-sponsor of the team and that the practices of, and the games played by, the team were athletic events approved by him. At the time of the claimant's injury the following regulation of the Denver Police Department was in effect:
'Officers participating on an approved athletic team or other group of recreational activity under the name of the Denver Police Department shall be considered on duty and subject to the rulings and discipline of the Chief of Police or other officers delegated to act as coaches or managers.'
Other testimony given in support of the claim was to the following effect: Participation in this athletic endeavor benefits the police department in that it tends to keep the participants physically fit and creates good public relations. When officers were scheduled to be on duty at the time of a game, they were permitted to take the time off necessary for participation in the game without any penalty or deduction in pay. Other members of this basketball team, who were injured during games, had been compensated under the Workmen's Compensation Act. In this particular instance the Police Pension Board awarded claimant's pension 'bank' with the days he missed because of the injury, i.e., this was treated as if he had been injured on duty and in the course of his employment. Usually officers on duty were provided with police department transportation to and from games held in Denver.
In opposition to the claim the State Compensation Insurance Fund has urged consideration of the following facts: The game was not played on police department premises. While claimant had been permitted to play at other times while scheduled for duty, at the time of the injury he was not so scheduled. While off duty, he furnished his own transportation to and from the games played in Denver. The financing of the team was contributed by the association. While in other years the words, 'Denver Police Department', or a similar designation were on the players' uniforms, no lettering was on the uniforms during the season in which the accident occurred. Only twelve out of over eight hundred members of the police department were members of the basketball team. Engaging in the activity was entirely voluntary.
The Fund has urged upon us strongly that under Industrial Commission v. Day, 107 Colo. 332, 111 P.2d 1061, we should rule as a matter of law that claimant was not acting within the scope of his employment at the time of the injury. In that case a Denver police officer was accidentally shot by another officer at a turkey shoot which was sponsored by the association. The ...
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