Industrial Com'n of Colo. v. London & Lancashire Indem. Co.

• Decision Date: 27 May 1957
• Docket Number: No. 18169,18169
• Citation: 311 P.2d 705,135 Colo. 372
• Parties: INDUSTRIAL COMMISSION OF COLORADO, a Corporation, Glenna Mary Tate, and Anthony Tate, a minor Claimants in the matter of the death of Ralph Malcolm Tate, Plaintiffs in Error, v. LONDON & LANCASHIRE INDEMNITY COMPANY, and Franklin Research Distributors, Inc., Defendants in Error.
• Court: Colorado Supreme Court

Page 705

311 P.2d 705

135 Colo. 372

INDUSTRIAL COMMISSION OF COLORADO, a Corporation, Glenna Mary Tate, and Anthony Tate, a minor Claimants in the matter of the death of Ralph Malcolm Tate, Plaintiffs in Error, v. LONDON & LANCASHIRE INDEMNITY COMPANY, and Franklin Research Distributors, Inc., Defendants in Error.

No. 18169.

Supreme Court of Colorado, In Department.

May 27, 1957.

Harold D. Torgan, Denver, for plaintiffs in error Glenna Mary Tate and Anthony Tate, a minor.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for plaintiff in error Industrial Comm. of Colo.

Wormwood, O'Dell & Wolvington, Paul D. Renner, Denver, for defendants in error.

KNAUSS, Justice.

Plaintiffs in error seek reversal of a judgment of the Denver district court which vacated an award of the Industrial Commission in favor of Glenna Mary Tate, widow of Ralph Malcolm Tate, and her minor son Anthony Tate for the death of the husband and father on December 30, 1956. The district court held that claimants had not established by any evidence in the record that Ralph Malcolm Tate died as a result of an accident arising out of and in the course of his employment by Franklin Research Distributors, Inc., to which we refer as the employer. London & Lancashire Indemnity Company is the insurance carrier for the employer.

The claim filed by Mrs. Tate and her son alleged that Mr. Tate died as a result of falling or being pushed from the fourth floor window of the employer's warehouse where he was employed. Notice of contest was filed by the employer and insurance carrier. The defense was that the death of Mr. Tate did not result from an accident arising out of and in the scope of his employment and that his death was intentionally self-inflicted.

An injury in the course of employment arises out of the employment even though the risk or hazard is external to the employment, where the employment or the conditions under which the work is performed cause exposure to the risk.

It is admitted that Mr. Tate was working for the employer on the date of his death. His hours of employment were from 8 A.M. to 4:30 P.M. The building where he worked was a seven story structure, a combination office and warehouse. About 5:30 P.M. on December 30, 1956 a man emerged from a building next door to employer's warehouse and observed the crumpled and broken body of Mr. Tate lying on the sidewalk in front of employer's building. At that time only the light in the first floor office of employer's premises was burning; the upper floors of the structure were dark. A window on the fourth floor of the warehouse some seventy feet above the sidewalk was open. Aid was summoned; Mr. Tate was removed to a hospital and died a short time thereafter. An examination of the premises disclosed that all doors and exits were closed and locked and that the firedoors were securely fastened. The window on the fourth floor was the only opening. Claimants produced evidence tending to show that Mr. Tate had no reason to commit suicide by jumping from the fourth floor window; that he had no financial difficulties; that he was not depressed and had accepted an invitation to a New Year's eve party the following evening.

The referee of the Commission in his findings, adopted in toto by the Commission said: 'There is no presumption of self-destruction in law, and respondents are obligated to show by conclusive evidence that the decedent met his death at his own hands, if they are to prevail in their denial of liability. The referee finds that respondents have failed to prove suicide, and their motion for denial of liability and dismissal of the claim on the grounds of self-destruction should be denied.' Nowhere in the findings of the referee, or of the Commission, nor in the evidence adduced at the hearing do we find anything to indicate that Mr. Tate's death resulted from an 'accident arising out of and in the course of his employment' as required by C.R.S. '53, 81-13-2.

When a claim is filed under the Workmen's Compensation Act the burden of proof is upon the claimant. Olson-Hall v. Industrial Commission, 71 Colo. 228, 205 P. 527; H. C. Laillier Construction & Engineering Co. v. Industrial Commission, 91 Colo. 593, 17 P.2d 532, 533. In the latter case it was said: '* * * the burden was upon the claimant to show by sufficient, substantial, and admissible evidence that an accident occurred; that it arose out of and in the course of employment of decedent, and resulted in his death.' (Emphasis supplied.) The language of the Act is plain, clear and explicit, and must be enforced according to it obvious...