Industrial Com'n v. Funk

• Decision Date: 07 June 1920
• Docket Number: 9751.
• Parties: INDUSTRIAL COMMISSION et al. v. FUNK.
• Court: Colorado Supreme Court

191 P. 125

68 Colo. 467

INDUSTRIAL COMMISSION et al. v. FUNK.

No. 9751.

Supreme Court of Colorado, En Banc.

June 7, 1920

Rehearing Denied July 6, 1920.

Error to District Court, Yuma County; L. C. Stephenson, Judge.

Proceedings under the Workmen's Compensation Act 1915 by Fannie Gaines for compensation for death of her husband, Sam Gaines opposed by Martin D. Funk, doing business as the Wray Brick Company, employer. Award for claimant by the Industrial Commission of Colorado was set aside by the district court and the commission and claimant bring error. Reversed and remanded, with directions.

Denison and Burke, JJ., dissenting.

Victor E. Keyes, Atty. Gen., and John S. Fine Asst. Atty. Gen. (H. E. Curran, of Denver, of counsel), for plaintiffs in error.

M. M. Bulkeley, of Wray, and Wayne C. Williams, of Denver, for defendant in error.

ALLEN J.

This cause is one brought and prosecuted under the provisions of the Workmen's Compensation Act. On June 14, 1916, Sam Gaines and William Gaines, father and son, respectively, were, as the result of an accident, killed while in the employ of Martin D. Funk, doing business as the Wray Brick Company. On August 26, 1918, the Industrial Commission, after due proceedings and a hearing, awarded certain compensation to one Fannie Gaines, the widow of Sam Gaines, deceased, as his dependent during his lifetime. Thereafter Martin D. Funk, the employer and who had been ordered to pay such compensation, filed a petition for rehearing, and the same was, on September 30, 1918, denied by the commission. On November 18, 1918, Funk commenced an action in the district court of Yuma county to set aside the order and award of the commission, and on November 5, 1919, the district court set aside the order and award. The Industrial Commission, and Fannie Gaines, as claimant of compensation, bring the cause here for review.

The record presents three main questions of law for our determination, namely:

(1) Did the accident, which caused the death of Sam Gaines and William Gaines, arise out of and in the course of the employment of the decedents?

(2) Was Sam Gaines, at the time of the accident, an employé, within the meaning of the Workmen's Compensation Act, who or whose dependents would be entitled to compensation under the act?

(3) Was Martin D. Funk such an employer as to be or to become subject to the provisions of the Workmen's Compensation Act?

It is plain from the provisions of the Workmen's Compensation Act, and it is not controverted, that, if any one or more of the foregoing questions must be answered in the negative, no compensation was allowable to any one, and the order and award of the commission cannot be upheld. The district court set aside the order and award on grounds which are the equivalent of answering the first two questions in the negative.

Relevant to the first question, the findings of the commission, which are supported by the evidence, are as follows:

'That at the date of their death, they (Sam Gaines and William Gaines) were employed by the said Martin D. Funk, doing business as the Wray Brick Company, in mining silica from an open pit or bank then owned and operated by the said Martin D. Funk in connection with his brick business in the city of Wray, Colo. That while so employed and engaged in mining silica under the bank, the top caved off, completely covering the said William and Sam Gaines and causing almost instant death. * * *

'That from the evidence produced at said hearing the commission finds that the said Sam Gaines was guilty of violating a reasonable safety rule, in this: That the said Martin D. Funk has specifically ordered and directed that the said Sam and William Gaines were not to work under the overhanging silica bank without first causing the same to be caved off. That the said Sam and William Gaines had not caved off the top of the silica bank as directed, and that, in accordance with the Workmen's Compensation Law, compensation or death benefits should therefore be reduced 50 per cent.'

Whether it is to he held that the accident arose out of and in the course of the employment depends upon the consequences which we find result from the disobedience of the order or direction, mentioned in the findings.

In 1 Honnold on Workmen's Compensation, p. 390, § 113, the author says:

'Disobedience to an order or breach of a rule is not of itself sufficient to disentitle a workman to compensation, so long as he does not go outside the sphere of his employment. There are prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within such sphere. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.'

In the instant case, it should be noted that the commission found that the workman was directed 'not to work under the overhanging silica bank without first causing the same to be caved off.' It is thus seen that the workman was not prohibited from working at all on the silica bank in question, but was instructed to cave off the top before commencing the work of mining at that particular place. The order related to the manner in which that particular section of the silica bank was to be worked. The order, therefore, dealt only with the conduct of the workman within his sphere of employment, and did not limit such sphere. Under the rule above quoted from Honnold, which we regard as correct, the violation of the order or direction involved in this case did not make the accident one not arising out of and in the course of the employment, and it cannot therefore, be held that the deceased were not within the scope of their employment at the time of the accident.

The commission regarded the disobedience of the order as a violation of 'a reasonable safety rule,' and for that reason reduced the compensation 50 per cent., under section 61 of the Workmen's Compensation Act of 1915 (Laws 1915, p. 551), which provides for such action 'where injury results from the employé's willful failure to obey any reasonable rule adopted by the employer for the safety of the employé.' We agree with the commission's conclusion that the order in question was a safety rule, within the meaning of the act. With reference to the direction, the employer testified:

'I told them that the bank was safe here and here (pointing) and here not to take any more out unless he caved it down from the top; while it might stand if left alone, if they dug any further it might cave on them.'

It is also plain from the section last cited (section 61, c. 179, S. L. 1915) that a willful violation of a safety rule does not defeat compensation, but only reduces it 50 per cent.

The defendant in error, the employer and respondent in the proceedings before the commission, contends, with reference to the second question presented in this case, that Sam Gaines was not such an employé as would be entitled to compensation under the act, or whose dependents would be so entitled. In this connection it is insisted that William and Sam Gaines were 'casual' employés, and reliance is placed upon section 4(e) II of the act, where it is provided that the term 'employé' shall not include 'any person whose employment is but casual.'

The...