Industrial Com'n v. Ernest Irvine, Inc.

• Decision Date: 05 February 1923
• Docket Number: 10525.
• Parties: INDUSTRIAL COMMISSION et al. v. ERNEST IRVINE, Inc., et al.
• Court: Colorado Supreme Court

212 P. 829

72 Colo. 573

INDUSTRIAL COMMISSION et al. v. ERNEST IRVINE, Inc., et al.

No. 10525.

Supreme Court of Colorado, En Banc.

February 5, 1923

Error to District Court, City and County of Denver; Warren A Haggott, Judge.

Proceedings under the Workmen's Compensation Act by Rose Lewis to recover compensation for the death of John Lewis, employee opposed by Ernest Irvine, Inc., employer, and Maryland Casualty Company, insurance carrier. An award for claimant was reversed by the district court on appeal, and claimant and the Industrial Commission bring error.

Reversed with directions.

Victor E. Keyes, Atty. Gen., and Russell W. Fleming, John S. Fine and Joseph O'Connell, Asst. Attys. Gen., for plaintiff in error Industrial Commission.

John A. Rush, Foster Cline, and Eugene Higgins, all of Denver, for plaintiffs in error Lewis.

Dana, Blount & Silverstein, of Denver, for defendants in error.

BURKE J.

Plaintiff in error the Industrial Commission is hereinafter referred to as 'the Commission,' plaintiff in error Rose Lewis as 'the plaintiff,' defendant in error Ernest Irvine, Inc., as 'the corporation,' defendant in error Maryland Casualty Company as 'the insurance company,' and John Lewis, formerly the husband of plaintiff, as 'the deceased.'

February 28, 1922, deceased was employed by the corporation in its business of selling automobiles. Upon entering the garage of Oscar J. Harris on the evening of that day, he was shot and killed by Harris under the assumption that he was a burglar who had entered the garage with felonious intent. The corporation was operating under the Workmen's Compensation Act (Laws 1919, p. 700), and plaintiff, claiming that her husband's death was due to an accident arising out of and in the course of his employment, brought this action before the commission for compensation. Findings and award in her favor were, on appeal by the corporation and the insurance company, reversed by the district court, and to review that judgment the plaintiff and the Commission prosecute this writ.

Three questions were raised by the pleadings: (1) Did the findings support the award? (2) Did the Commission act without or in excess of its powers? (3) Was the evidence 'sufficient'?

It is apparent to us that the trial court, mistaking its power and duty in the premises, disposed of this case upon the question of the sufficiency of the evidence. Its finding was:

'This cause having been heretofore submitted to the court and by the court taken under advisement upon its merits, and the court being now sufficiently advised in the premises, doth find the issues joined for the plaintiff and that the finding and award of the Industrial Commission be set aside.'

The judgment of the court should have disclosed its conclusion upon each specific question before it. It had no power to disturb findings of the Commission entered on conflicting evidence. Industrial Commission v. Johnson, 66 Colo. 292, 181 P. 977. No fraud being charged, that court was limited, as is this, to the determination of questions Nos. 1 and 2, supra.

There is evidence in the record before us to justify the following conclusions:

From October, 1921, to January, 1922, Harris and deceased were partners operating a garage at 1445 South Broadway in the city of Denver. During that time and up to the date of the death of deceased, these two men were on friendly and intimate terms. In January, 1922, deceased sold out to Harris and turned over to him the possession of the business and the keys of the building. Thereafter deceased sometimes called at the garage and Harris visited at his home. Deceased began working for the corporation as a salesman immediately after the dissolution of his partnership with Harris. His duties were to demonstrate cars to prospective purchasers and aid in making sales. He supposed at the time of the dissolution of the partnership that he had turned over all the keys in his possession. Several persons kept cars in the Harris garage and carried keys to the door because the place was closed early in the evening and not open during the night. After Harris and deceased began business there in October, several keys were brought in by persons not known to have possession thereof. Two or three days preceding the shooting, deceased and his minor son, searching a box at their home for a pencil clip, found one of these keys. Deceased hung it on a nail in his kitchen and left word with his wife to deliver it to Harris if the latter called in his absence. On February 25, 1922 (Saturday), the corporation had one prospective purchaser in Denver and another in Littleton. The corporation's place of business was closed early in the evening and not open on Sundays. Deceased's employer directed him to take a car home with him that evening that it might be accessible for demonstration to the Denver customer early Sunday morning and to the Littleton prospect later in the day. Deceased acted accordingly. He reached his home in the city and had supper about 6:30 p. m. His own garage was unheated; the night was cold and threatening to get colder. He discussed with his wife the danger of the car freezing up, and she suggested the diffculty be obviated by taking it to the Harris garage and storing it for the night. Acting on this suggestion, after supper he took the key and departed with that object in mind. His duty to his employer under the circumstances was to take care of the car in his charge and use his own best judgment to that end. His relations with Harris were such that it was perfectly satisfactory to the latter for him to come and go at the Harris garage at any time of the day or night, and Harris, neither prior to the shooting nor afterwards, had the slightest suspicion of deceased. Had he known that the latter carried a key to his garage, he would have had no objection thereto and no objection to the storage of the car therein. The Harris garage was frequently full at night with the exception of a passageway which would hold one or two cars, and had at times been so completely filled that an additional car could not be stored therein. Prior to the day in question, a number of thefts of oil, gasoline, and tools had been committed from the Harris garage. Harris, after consultation with the police, had determined to lie in wait for the perpetrators of these thefts, and on the night in question was concealed in his garage for the purpose of apprehending them. He was armed with a pistol, and the garage was in darkness. Deceased, ignorant of the presence and purpose of Harris, drove past the door, and getting out of the automobile went to the garage to ascertain if there was room therein for further storage. He knew that just inside the door was an electric light switch. He stepped in, closed the door, and without turning on the switch...