Industrial Com'n v. Golden Cycle Corp.

• Decision Date: 07 July 1952
• Docket Number: No. 16819,16819
• Citation: 246 P.2d 902,126 Colo. 68
• Parties: INDUSTRIAL COMMISSION et al. v. GOLDEN CYCLE CORP.
• Court: Colorado Supreme Court

Page 902

246 P.2d 902

126 Colo. 68

INDUSTRIAL COMMISSION et al. v. GOLDEN CYCLE CORP.

No. 16819.

Supreme Court of Colorado, en Banc.

July 7, 1952.

Rehearing Denied July 28, 1952.

Ziegler & Hoyt, Colorado Springs, for plaintiff in error Byron W. moffitt.

Duke Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Thomas M. Burgess, Kenneth W. Geddes, Colorado Springs, for defendant in error.

HOLLAND, Justice.

Plaintiff in error is a claimant under the Workmen's Compensation Act, '35 C.S.A. c. 97, § 280 et seq., for damages for injuries received about October 9, 1950, near Colorado Springs on the premises of the Pikes Peak Fuel Company, a division of defendant in error, The Golden Cycle Corporation.

It was a sand and gravel pit operation. The Daniels Sand Company had some arrangement with the Pikes Peak Fuel Company to truck sand and gravel from the pit as loaded by a power shovel to a washer on the same premises. On October 5, four days before the accident, claimant, seeking employment as a truck driver, was finally taken to the premises by Ray Daniels, one of the partners and manager of the Daniels Sand Company, and was there employed and put to work driving a truck from the excavating shovel to the sand pit after preliminary instructions and taking one trip with the then operator of the truck. Four days later, at the noon hour on a very hot day, when the operator of the excavating shovel stopped and went over to a shop to eat his lunch, claimant took his lunch from his truck and went over into the shade of an overhanging embankment and started to eat when the embankment caved off, partially covering him and throwing him against the power shovel, causing severe injuries to his head, which required skull operations and other like treatments, and resulting in one hundred per cent disability. He filed his claim with the Industrial Commission, but at the hearing his memory was so impaired that he could not remember any of the incidents leading up to, or concerning, the accident.

His claim for compensation was filed December 2, 1950 and the hearing was had on December 14 thereafter. The referee's finding and order, entered on March 29 1951, was, in substance, to the effect that claimant was injured in the course of his employment, but had violated a safety rule. An award for maximum compensation reduced fifty per cent for safety-rule violation was made against the Pikes Peak Fuel Company, since the Daniels Sand Company did not carry workmen's compensation insurance. The employer filed petition for review on account of dissatisfaction with the award against it for fifty per cent compensation; the claimant filed his petition for review on account of the reduction of his compensation fifty per cent. The award of the referee of the Industrial Commission was adopted and further petition by the employer was filed, but no further petition for review was filed by claimant. In its final award the Industrial Commission affirmed and approved its former award and in due course the employer brought this action in the district court of El Paso county, at Colorado Springs, Colorado, to set aside the award of the commission on May 28, 1951. On July 14, claimant filed answer and cross-complaint asserting that the reduction of compensation for safety-rule violations is contrary to the law and the evidence. The employer and the commission filed motions to dismiss claimant's cross-complaint because claimant had failed to comply with sections 97 and 98 of the Workmen's Compensation Act, sections 376 and 377, chapter 97, '35 C.S.A. The trial court, after hearing on November 15, 1951, granted the motions to dismiss the cross-complaint, and after having the matter under advisement found, on January 5, 1952, that the actual injury of claimant did not arise out of and in the course of his employment and set aside the award of the Industrial Commission, together with an order to the commission to vacate its award and dismiss the claim for compensation. To review the trial court's disposition of the matter, the proceeding is before us.

The circumstances present two questions, namely, did the injury arise out of and in the course of claimant's employment; and did claimant violate a safety rule? Since the early enactment of compensation laws, the industrial claimant has been bedeviled by the words, 'arise out of and in the course of employment.' On this question, here it is undisputed that claimant was eating his lunch on the employer's premises at the noon hour. This was during the employment. The vital question remains, can his injury, under the circumstances, be classed as 'arising out of' his employment. It arises out of the employment if it is connected with the nature, conditions, operations or incidents of the employment. Courts generally have been liberal in protecting workers during the noon hour if the injury occurs while the worker is doing what a man may reasonably do within a time during which he is employed and at a place where he may reasonably be at that time. The claimant here, in the matter of eating his lunch at the time designated for that purpose of the premises of the employer, was doing so in the course of his employment. As said in 1 Honnold on Workmen's Compensation, page 382, section 111, '* * * Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink,...