Ellerman v. Industrial Com'n of Colorado

• Decision Date: 08 January 1923
• Docket Number: 10338.
• Citation: 213 P. 120,73 Colo. 20
• Parties: ELLERMAN et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

213 P. 120

73 Colo. 20

ELLERMAN et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 10338.

Supreme Court of Colorado, En Banc.

January 8, 1923

Rehearing Denied March 5, 1923.

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

Proceeding under the Workmen's Compensation Act by Amelia A Ellerman and others, for compensation for the death of William F. Ellerman, husband of named claimant, opposed by Arvid Olson, employer. From a judgment of the district court affirming a decision of the Industrial Commission denying compensation, claimants bring error.

Remanded with directions.

George F. Dunklee, Edward V. Dunklee, and William H. Gabbert, all of Denver, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for defendants in error.

BURKE J.

Plaintiffs brought this action before the Industrial Commission to recover under the Workmen's Compensation Act (Laws 1919, p. 700) for the death of William F. Ellerman, husband of the plaintiff Amelia A. Ellerman, and father of the other plaintiffs. The Commission decided against them, and to review a judgment of the district court affirming that decision plaintiffs bring the cause here on error.

William F. Ellerman came to Colorado from Illinois, where he had been an iron moulder. He was about 50 years old, and apparently a strong and vigorous man. The only work he did after arriving in this state and prior to August 11, 1921, was mowing lawns and doing other odd jobs requiring no exceptional exertion. On the last-mentioned date he began work for defendant Olson. His duty consisted in wheeling a barrow loaded with concrete a distance of about 125 feet over a level runway, and dumping it. The total load weighed approximately 300 pounds, and the portion of it actually lifted about 75 pounds. At the end of the third trip, while in the act of dumping the load, Ellerman dropped the barrow handles and fell. He died almost immediately. The undisputed testimony established that death was due to an acute dilation of the heart preceded by chronic myocarditis. The Commission found:

'The vital question in this case is as to whether defendant's death was caused by an accident arising out of and in the course of his employment.'

The 'question' thus stated includes three questions: (a) Was the death due to an accident? (b) Did the accident occur in the course of the employment? (c) Did the accident arise out of the employment? These are the identical questions involved in every workmen's compensation case. The Commission further found:

'The decedent sustained no accident in the nature of a bruise or trauma of any kind whatsoever. I am unable to see wherein his death can be attributed to an accident as defined by law. Overexertion in my opinion is not an accident. My opinion, therefore, is that the claimants have not shown that the decedent died as a proximate result of an accident as defined by the Workmen's Compensation Law of Colorado, and claim for compensation is therefore denied.'

It is admitted that the death of William F. Ellerman occurred 'in the course of' his employment. Whether it 'arose out of' that employment depends upon whether it was caused by 'overexertion' due to the employment. If so it 'arose out of' the employment. Otherwise not. Clearly the Commission determined solely a question of law, i. e., that under the Workmen's Compensation Act heart disease of any kind causing death in the course of the employment could not be held to be an accident. The Commission did not find that there was or was not 'overexertion,' and did not find the death due to that cause. If death was due to 'overexertion' 'arising out...