Hassell Iron Works Co. v. Industrial Com'n

• Decision Date: 07 November 1921
• Docket Number: 10086.
• Citation: 70 Colo. 386,201 P. 894
• Parties: HASSELL IRON WORKS CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

201 P. 894

70 Colo. 386

HASSELL IRON WORKS CO. et al. v. INDUSTRIAL COMMISSION et al.

No. 10086.

Supreme Court of Colorado

November 7, 1921

Error to District Court, El Paso County; J. W. Sheafor, Judge.

Proceeding by Elizabeth Hrutkai, on behalf of herself and minor children of John Hrutkai, for an award under the Workmen's Compensation Act, opposed by the Hassell Iron Works Company employer, and the Ocean Accident & Guarantee Corporation insurer. The employer and insurer brought action in the District Court to set aside the findings and award of the Industrial Commission. Judgment for the defendants, and the plaintiffs bring error.

Affirmed.

Fred W. Varney and Chas. W. O'Donnell both of Denver, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for Industrial Commission.

Martin M. Burns, of Colorado Springs, for defendant in error Elizabeth Hrutkai.

ALLEN J.

This is an action brought in the district court of El Paso county to set aside the findings and award of the Industrial Commission in the matter of a claim presented under the Workmen's Compensation Act. The district court confirmed the findings and award, and plaintiffs bring the cause here for review.

The claim for compensation filed with the Industrial Commission was made by and on behalf of the dependents of a deceased employé, one John Hrutkai. The findings and award were in favor of the claimants. The claim was resisted by the employer and the insurer, plaintiffs in error here and plaintiffs below.

The findings of the Commission, so far as now material, are as follows 'That John Hrutkai, deceased, was killed by an accident arising out of and in the course of his employment while performing services arising out of and in the course of his employment while working for the * * * employer at Ship Rock N. M., on September 9, A. D. 1918. That while so employed and while engaged in operating an oxy-acetylene torch and wrecking a steel bridge on an island in the San Juan river, near Ship Rock, N. M., the said John Hrutkai was struck by lightning, death resulting instantly. That his death was the immediate result of the accident above described, and arose out of and in the course of his employment. * * *'

The objections of the plaintiffs in error to the findings and award of the Commission are stated in various ways in the complaint and in the assignment of errors, but they may be summed up in this, namely, that there is no evidence to support the finding that the accident arose out of the employment.

The materiality of the objection, as thus stated, results from that provision of section 8, c. 179, Session Laws of 1915, which makes it one of the conditions precedent to the right to compensation that the injury or death of the employé be proximately caused by accident arising out of his employment.

The only question that need be determined upon this review is whether there is evidence to support the finding that the accident arose out of the employment. In Passini v. Industrial Commission, 64 Colo. 350, 171 P. 370, this court said:

'This court may consider only the legal question of whether there is evidence to support the findings, and not whether the Commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the Commission, where supported by evidence, or reasonable inference to be drawn therefrom.'

The employé concerned in the instant case was killed by lightning. It is claimed by the plaintiffs in error that, upon the facts appearing in the instant case, the Commission could not find that the accident of being struck by lightning arose out of the employment. It appears to be assumed on both sides that a correct statement of law relevant to this matter is that found in 1 Honnold on Workmen's Compensation, 428, as follows:

'The employer cannot ordinarily be held liable for compensation for disability from sunstroke, freezing and lightning. These are forces of nature which he cannot foresee and prevent, and the employee is ordinarily no more subject to injury from such sources than others. But where the work and the method of doing the work exposes the employee to the forces of nature to a greater extent than he would be if not so engaged, the industry increased the danger from such forces, and the employer is liable.'

In the light of the statement just quoted,...