Industrial Com'n of State of Colorado v. Anderson

• Decision Date: 03 December 1917
• Docket Number: 9251.
• Citation: 69 Colo. 147,169 P. 135
• Parties: INDUSTRIAL COMMISSION OF STATE OF COLORADO et al. v. ANDERSON.
• Court: Colorado Supreme Court

169 P. 135

69 Colo. 147

INDUSTRIAL COMMISSION OF STATE OF COLORADO et al. v. ANDERSON.

No. 9251.

Supreme Court of Colorado, En Banc.

December 3, 1917

Error to District Court, Denver County; John H. Denison, Judge.

Proceeding under the Workmen's Compensation Act by Charles Anderson to obtain compensation for personal injuries, opposed by the Robert D. Sharp Music Company, employer, and the Hartford Accident & Indemnity Company, insurer. A determination of the Industrial Commission denying compensation was reversed by the district court, and the Commission, the employer, and the insurer bring error. Reversed and remanded, with directions.

William R. Eaton, of Denver, for plaintiff in error Hartford Accident & Indemnity Co.

Leslie E. Hubbard, Atty. Gen., and Walter E. Schwed, of Denver, for other plaintiffs in error.

Leroy McWhinney, of Denver, for defendant in error.

BAILEY J.

Plaintiffs in error bring here for review a judgment of the district court reversing the conclusions of the Industrial Commission of the State of Colorado, wherein defendant in error was found not entitled to compensation under the Workmen's Compensation Act. In this opinion the parties will be designated as in the court below.

The facts as disclosed by the findings of the Commission are that the plaintiff, a man of about seventy-eight years of age, was employed by The Robert D. Sharp Music Company as a repairer of musical instruments. He worked in Denver at the shop in the store of his employer, down town, and also had a work room at his home, where he occasionally took instruments to repair. On the morning he was hurt he had worked at his home before breakfast, after which he went out upon the street to take the car for his employer's store. While attempting to board a street car, a passing automobile caused him to step back quickly toward the sidewalk, and in so doing he slipped on the ice and fell, resulting in the injury for which compensation is sought.

It appears that plaintiff had the privilege of taking work home with him from the store, but that this was not required of him, and was in no sense one of the conditions of his employment, and that his prescribed working hours were from eight o'clock in the morning until six in the evening, and that the accident occurred between these hours. The claim was given three hearings before the Commission, but the adverse conclusion first reached was not modified by subsequent hearings. Plaintiff was dissatisfied with the findings, and instituted action in the district court under section 78 of the Act. The district court reversed the conclusions of the Commission, and held, upon the facts, that the plaintiff was entitled to compensation. It is this alleged improper application of the law to the facts that we are called upon to review.

Plaintiff's right to recover depends upon certain conditions, enumerated in Section 8, Chapter 179, Session Laws 1915, at page 528:

'Sec 8. The right to the compensation provided for in this act in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury or death accidentally sustained on and after August 1, 1915, shall obtain in all cases where the following conditions concur: I. Where, at the time of the accident, both employer and employee are subject to the provisions of this act. II. Where, at the time of the accident, the employee is performing services arising out of and in the course of his employment. III. Where the injury is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted or intentionally inflicted by another.'

Under this section it is necessary that both the service being performed and the injury sustained shall arise out of and in the course of the employment. The intent is to make the industry responsible for industrial accidents only, and not those resulting from hazards common to all. In re McCarthy (Ohio) 7 N.C.C.A. 417, Ohio Ind. Com. No. 59526; Worden v. Commonwealth Power Company (Mich.) 4 N.C.C.A. 853; Hopkins v. Mich. Sugar Company, 184 Mich. 87, 150 N.W. 325, L.R.A. 1916A, 310; Hills v. Blair, 182 Mich. 20, 148 N.W. 243, 7 N.C.C.A. 414.

In discussing the nature of the relief granted by workmen's compensation acts, the Massachusetts court in In re Madden, 222 Mass. at page 494, 111 N.E. at page 382, L.R.A. 1916D, at page 1004, said:

'The act is not a substitute for disability or old age pensions. It cannot be strained to include that kind of relief. Its ultimate purpose simply is to treat the cost of personal injuries incidental to the employment as a part of the cost of the business. It does not afford compensation for injuries or misfortunes which merely are contemporaneous or coincident with the employment, or collateral to it. * * * The relief is so new that the tendency may be to enquire only as to the employment and the injury, and to assume that these two factors constitute grounds for compensation. But the essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment, and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency, or there can be no recovery. In passing upon this question, an humanitarian emotion ought not to take the place of sound judgment in the weighing of evidence. The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being.'

The same court construes the terms 'arising out of' and 'in the course of' the employment, in Re McNicol et al., 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, in the following language:

'* * * In order that compensation may be due, the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act, and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment, when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of' the employment when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to

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