Employers' Liability Assur. Corp. v. Industrial Commission

• Decision Date: 24 July 1961
• Docket Number: No. 19726,19726
• Citation: 363 P.2d 646,147 Colo. 309
• Parties: EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., a corporation, and Geophoto Services, Inc., a corporation, Plaintiffs in Error, v. INDUSTRIAL COMMISSION of Colorado, Edna M. Anderson and Sharon L. Anderson, Defendants in Error.
• Court: Colorado Supreme Court

Page 646

363 P.2d 646

147 Colo. 309

EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Ltd., a corporation, and Geophoto Services, Inc., a corporation, Plaintiffs in Error, v. INDUSTRIAL COMMISSION of Colorado, Edna M. Anderson and Sharon L. Anderson, Defendants in Error.

No. 19726.

Supreme Court of Colorado, In Department.

July 24, 1961.

McComb, Zarlengo & Mott, Denver, for plaintiffs in error.

Duke Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter Dye, Asst. Atty. Gen., for defendant in error Industrial Commission.

Dayton Denious, Omer Griffin, Denver, for defendants in error Edna M. Anderson and Sharon L. Anderson.

DOYLE, Justice.

This is a case arising under the Workmen's Compensation Act. Review of a judgment of the district court is sought by the insurance carrier and employer. The claimants before the Commission, defendants in error, are the widow and surviving child of the deceased employee. They claim death benefits on the basis that decedent's death resulted from an accident arising out of and in the course of his employment.

The only evidence before the Commission was that offered on behalf of the claimants. It appears therefrom that decedent was originally employed by a partnership called Geophoto Services; that on July 1, 1957, this partnership was succeeded by a corporation organized under the laws of Colorado and known as Geophoto Services, Inc. The partnership had sent decedent to Lybia in April, 1957, to perform geologist services on a specific project. While there he traveled to various places in North Africa and performed highly responsible service. This activity continued until April 5, 1959, on which date decedent left Lybia, on travel orders of his employer, enroute to Denver, the headquarters of the employer. Decedent and his wife spent several days in Europe on vacation. They purchased an automobile in Germany and then traveled to the United States by boat. After arrival in the United States they commenenced the journey to Denver by car. The death occurred in an automobile accident in Pennsylvania on May 12, 1959. Decedent died almost immediately from the injuries incurred in this accident. Although the decedent's destination was Denver, he was traveling on the Pennsylvania Turnpike in an easterly direction at the time of the accident.

Two claims for death benefits were filed. One was against Geophoto Services, Inc. and the other was against Geophoto Lybia, Inc. These claims were consolidated for hearing before the referee on December 17, 1959. The referee entered an order (on January 18, 1960) denying and dismissing the claim filed against Geophoto Lybia, Inc., but awarded compensation against Geophoto Services, Inc. A petition for review was filed by the employer and insurance carrier, and following extensive hearings the Commission entered its award affirming and adopting the referee's order. The insurance carrier then instituted this action in the district court seeking to set aside the award of the Commission. From a judgment affirming the Commission's award, the plaintiffs are here on writ of error.

As grounds for reversal, plaintiffs in error urge:

First, that at the time of the accident decedent was not engaged in the performance of services for his employer, therefore his death was not the result of an accident arising out of and in the course of his employment.

Second, that the Commission lacked jurisdiction to enter the award because the work was being performed outside Colorado.

I.

In support of the first point, it is argued that since claimants have the burden of proof it was incumbent upon them to establish that decedent was engaged in activity within the course of his employment at the time of the accident. This, they say, he failed to do since the undisputed evidence shows that he was traveling in an easterly direction away from Denver, his ultimate destination. This indicates, they say, that he was engaged in personal activity and having stepped out of the course of his employment, was not within the coverage of the Act. Rand v. Industrial Commission, 110 Colo. 240, 132 P.2d 784 and Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661, are relied on.

There are numerous authorities holding that an employee in a traveling status is within the protection of the Act. See Industrial Commission v. Moynihan, 94 Colo. 438, 32 P.2d 802; O. P. Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55; Aetna Casualty & Surety Co. v. Industrial Commission, 110 Colo. 422, 135 P.2d 140; Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074.

The Rand case, supra, does indeed recognize the principle that where an employee is injured during a period of departure from his employment activities he is not within the coverage and protection of the Act. There the claimant, a salesman, had quit work at 1:30 P.M. on Saturday afternoon and had been engaged in various personal activities during a period of several hours and was shown to be on a specific personal errand just prior to injury and manifestly was not engaged in the work of his employer at the time of the accident. The Commission found this to be the fact and denied compensation. The Rand case does not control the instant fact situation. The evidence here discloses that the decedent, who was chief geologist for Geophoto Services, Inc., had been engaged in various activities for his employer not only in Europe but in several places in North Africa. He completed his mission in North Africa and was ordered to return to Denver via Tunis and Madrid. In these latter places he performed work for his employer. He sailed from Stockholm in accordance with arrangements which had been approved by his employer. The evidence clearly established that he was returning to Denver, and there is no suggestion in the testimony other than the fact that his automobile was headed in an easterly direction, that he had abandoned the service of his employer.

The scope and extent of Workmen's Compensation coverage in like circumstances is fully discussed in Alexander Film Co. v. Industrial Commission, supra. There the Court in an opinion by Mr. Justice Frantz said:

'Mr. Olson, by reason of his employment, incurred the risks necessary and incident to such employment. Away from home the hazards of the road, and those hazards involved in the necessary ministrations of self, were the normal and necessary incidents to the paramount purpose of his presence in Michigan, i. e., the production of playlets and scenaries. Required to be away from his home by the duties of his employment, his compensation covering the expenses necessary and incident to living away from home, any hazards present in staying at the motel, eating at a restaurant, and in going to and from these places come within the ambit of the compensation act.' [136 Colo. 486, 319 P.2d 1077.]

In the Aetna case, supra, the decedent was killed while traveling through Kansas enroute to Detroit, Michigan for his employer and it was argued that this deviation in and of itself was sufficient to render the injury and death non-compensable. However, the court ruled that if the work of the employee creates a situation requiring travel the injury is covered even though at the particular...