Industrial Com'n v. Day

• Decision Date: 17 March 1941
• Docket Number: 14726.
• Citation: 111 P.2d 1061,107 Colo. 332
• Parties: INDUSTRIAL COMMISSION et al. v. DAY.
• Court: Colorado Supreme Court

111 P.2d 1061

107 Colo. 332

INDUSTRIAL COMMISSION et al. v. DAY.

No. 14726.

Supreme Court of Colorado

March 17, 1941

Rehearing Denied April 7, 1941.

In Department.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Proceeding under the Workmen's Compensation Act by Everett E. Day claimant, opposed by the City and County of Denver, employer. To review a judgment for claimant, reversing a finding of the Industrial Commission, the Industrial Commission and others bring error.

Reversed and remanded with directions.

Byron G. Rogers, Atty. Gen., and Frank A. Bruno Asst. Atty. Gen., for Industrial Commission.

Harold Clark Thompson and Louis Schiff, both of Denver, for Insurance Fund.

Malcolm Lindsey, City Atty., and Richard F. Ryan, Asst. City Atty. both of Denver, for City and County of Denver.

I. L. Quiat, Ralph J. Cummings, and Julius F. Seeman, all of Denver, for defendant in error.

BURKE Justice.

This is a Workmen's Compensation case. The parties are hereinafter referred to as the commission, the fund, the city, and Day, respectively.

Day, a police officer of the city, was accidentally shot by another officer at a 'turkey shoot.' Claiming his injury was due to an accident arising out of and in the course of his employment he filed his claim with the commission and the hearing thereon took the usual course. A referee found for him and awarded compensation for temporary and permanent disability. On review the commission held the contrary. When its award became final Day brought this action in the district court which reversed the commission and entered judgment for him. To review that judgment this writ is prosecuted.

The ultimate question presented is, Did the accident arise out of and in the course of Day's employment as a police officer? Incidental thereto is the question whether certain clearly established and material facts were erroneously omitted from the commission's findings which, if included, would have necessitated an award for Day.

In a shooting gallery rented by it, the city police department held obligatory monthly 'efficiency shoots' to train and test members in the use of firearms. The 'turkey shoots' were annual events held in the same place. At the time of his injury Day was assigned to the 'communication office.' There shooting was not part of his duties, though he was subject to reassignment. There is a police protective association membership in which is optional. The record supports the commission's finding that it sponsored the 'turkey shoot.' The police detail in charge of 'efficiency shoots' also had charge in the 'turkey shoots.' Participation in the latter was not obligatory. Day had the highest rating in the 'efficiency shoot' of the previous month. Under a department regulation granting full pay to an officer injured in line of duty Day, though off duty since the accident, had been paid accordingly. He was encouraged by his superior to participate in the event but the evidence falls short of establishing that he was ordered to do so. The trial court found, inter alia, 'It is apparent that the situation is one very nicely balanced, so that claimant's services may be considered, if emphasis is given to one set of facts, to have been of benefit and service to his employer. But by emphasizing others, it is possible to find that he was engaged in a voluntary competition purely for his...