Coors Porcelain Co. v. Grenfell

• Decision Date: 19 January 1942
• Docket Number: 15042.
• Citation: 121 P.2d 669,109 Colo. 39
• Parties: COORS PORCELAIN CO. et al. v. GRENFELL.
• Court: Colorado Supreme Court

121 P.2d 669

109 Colo. 39

COORS PORCELAIN CO. et al. v. GRENFELL.

No. 15042.

Supreme Court of Colorado

January 19, 1942

In Department.

Error to District Court, City and County of Denver; Floyd F. Miles Judge.

Proceeding under the Workmen's Compensation Act by James Grenfell Sr., as dependent father of James Grenfell, Jr., deceased against the Coors Porcelain Company and the State Compensation Insurance Fund to recover compensation for the death of James Grenfell, Jr., deceased. The Industrial Commission of Colorado approved, affirmed, and adopted referee's order denying compensation. Subsequently the district court vacated the award of the Industrial Commission and remanded the case to the Industrial Commission with directions to make an award in favor of claimant, and the Coors Porcelain Company, the State Compensation Insurance Fund, and the Industrial Commission bring error.

Judgment reversed.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Morry M. Sterling, Asst. Atty. Gen., for plaintiff in error Industrial Commission of Colorado.

Harold Clark Thompson and Louis Schiff, both of Denver, for plaintiffs in error Coors Porcelain Co. and State Compensation Insurance Fund.

Byron G. Rogers and Frank A. Bruno, both of Denver, for defendant in error.

JACKSON Justice.

This is a proceeding under the Workmen's Compensation Act, '35 C.S.A. c. 97,§ 280 et seq., which differs from many other 'heart' accident cases originating Before the Industrial Commission, in that here there is no conflicting testimony of witnesses and essential evidence borders on the meagre. The only witnesses in the case whose testimony bears on the question involved were two--both called by claimant Grenfell, the father of the deceased.

Dr. Howlett stated that the autopsy showed that the heart was 'in bad shape and had been for a time.' He gave no definite opinion as to the cause of death. One of his statements was that in the condition the heart was in the work Grenfell, Jr., 'was engaged in would have been sufficient to produce death' and that 'the strain of work and exertion could be the immediate producing factor of causing the death.' Another statement appearing in the record is, that 'the heart was just like a clock that was about to run down and was ready to stop anyway; that whether lifting or straining actually caused it to stop at that moment or whether it was just the natural progress of the disease is something no one can tell.' On cross-examination the witness further stated that if the heart stopped from strain the symptoms would most likely come on in the middle of the strain.

The other witness, D. C. Bradley, a fellow employee and the deceased's immediate superior, testified as to circumstances surrounding the death; that the deceased had been at work for three hours that morning; that the work involved lifting heavy objects, but that deceased had most recently been engaged in the lighter side of his work and that at the time death overtook him he was actually empty-handed.

The commission approved, affirmed and adopted the finding and order of the referee, which were as follows:

'Upon hearing it appeared that the decedent, James Grenfell, was employed by the respondent employer at an average weekly wage of $18.00. On December 23, 1940, he was engaged in his regular work which on this particular day consisted of moving tile weighing three hundred to three hundred and fifty pounds each into a kiln using in this process a small two-wheeled hand truck. There were other persons engaged in this same job who were doing heavier parts of the work consisting in lifting and moving the tile. After some time at this work on the day in question, claimant left the kiln and went outside where he was overcome. He regained consciousness three or four minutes later and indicated a desire to go home. He then relapsed into unconsciousness and when the doctor arrived was pronounced dead.

'As a result of the post mortem examination of the decedent it was found that the heart was dilated to three or four times its normal size. Approximately 1000 c.c. of fluid were in the pericarial sac around the heart. There was found an old myocardial infarct and a focal endocarditis which had resulted in a large mural thrombosis almost filling the left ventricle of the heart. This condition was of long standing and from medical testimony at the hearing it appears that the death of the decedent was a natural and eventual result of his heart condition. It further appears that it is impossible to determine whether any effort on the part of the decedent would have contributed to his death at the time when it occurred. His condition was advanced enough to have resulted in his death at any time under any circumstances, and the Referee, therefore, finds that there is no showing that the decedent suffered an accident arising out of and in the course of his employment which resulted in any injury to him or which caused his death or contributed to his death in any way.

'It Is, Therefore, Ordered: That claimant's claim for compensation benefits, be and the same is hereby denied.'

Subsequently the district court for the City and County of Denver vacated the award of the Industrial Commission and remanded the case to the commission with directions to make an award in favor of the claimant, from which award and judgment the matter comes to this court on writ of error.

No written opinion of the district court appears in the record showing the basis of its action, but the insurer and employer's brief charges that in the arguments of counsel Before the district court two cases--Industrial Commission v. Wetz, 100 Colo. 161, 66 P.2d 812, decided in 1937, and Industrial Commission v. McKenna, 106 Colo. 323, 104 P.2d 458, decided in 1940,--were mentioned by the District Judge as the controlling cases and as justification for his judgment. Claimant's brief does not deny this statement. Justice Young wrote the opinion in both cases--in the Wetz case the majority opinion en banc with two dissenting; in the McKenna case in department with three justices concurring. These two cases are referred too extensively in all of the briefs filed.

Claimant's attorneys argue that the cases are similar to the instant case and therefore control; attorneys for the Industrial Commission and the employer claim that the cases are different and can be clearly distinguished from the present case. We, therefore, consider these two cases.

In the Wetz case the deceased, starting work at 7:30 o'clock in the morning, was, about 9:15, instructed by his superior to cross the street to start a Fordson tractor belonging to the Street Cleaning Department of the City and County of Denver. Due to zero temperature, the building had been kept closed and that morning there were fifty to...