Industrial Commission of Colorado v. Enyeart

• Decision Date: 16 May 1927
• Docket Number: 11713.
• Citation: 256 P. 314,81 Colo. 521
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. ENYEART.
• Court: Colorado Supreme Court

256 P. 314

81 Colo. 521

INDUSTRIAL COMMISSION OF COLORADO et al. v. ENYEART.

No. 11713.

Supreme Court of Colorado, En Banc.

May 16, 1927

Rehearing Denied May 31, 1927.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding under the Workmen's Compensation Act by Roy Enyeart claimant, opposed by the Colorado Fuel & Iron Company employer, and the Industrial Commission of Colorado. The district court set aside the Commission's award, which sustained the report of the referee disallowing compensation and directed compensation. The Commission and employer bring error.

Reversed, with directions.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein and Otto Friedrichs, Asst. Attys. Gen., for plaintiff in error Industrial Commission.

Fred Farrar and Wendell Stephens, both of Denver, for plaintiff in error Colorado Fuel & Iron Co.

French L.Taylor and Harry S. Petersen, both of Pueblo, for defendant in error.

DENISON J.

The referee disallowed compensation to Enyeart, the commission sustained his report, the district court set aside the commission's award and directed compensation, and the commission and the employer bring the case here on error. The judgment must be reversed.

The commission found as follows:

'That the claimant sustained an injury July 3, A. D. 1925, and left work upon that date. His injury consisted of a fracture of the fifth and sixth cervical vertebrae and a paralyzed left arm. He was temporarily and totally disabled to September 12, A. D. 1925, and his permanent disability consisted of 100 per cent. loss of use of the left arm. His average weekly wages were in excess of $24. The accident occurred about 4:15 p. m. July 3, A. D. 1925, while the claimant and one Vasco Stone were driving home from work and while they were crossing a bridge upon the employer's premises. Claimant and Vasco Stone had an agreement by which they alternated using their cars to drive to and from work. This agreement was entered into for the purpose of saving each man the cost of driving his own car every day. The accident was due to a fault in the steering gear or radius rod of the car. The defective part gave way while the men were upon the bridge, and they were plunged over the bridge into the creek bed. The referee finds that the accident did not arise out of and in the course of claimant's employment, but arose from a defect in the car of Vasco Stone, over which the respondents had no control, and that the mere fact that the accident occurred upon the premises of the employer is not sufficient to impose any liability upon the employer.'

The statute, C. L. § 4389, is as follows:

'The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, on and after August 1st, 1915, shall obtain in all cases where the following conditions occur:

'(a) Where, at the time of the accident, both employer and employé are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

'(b) Where, at the time of the accident, the employé is performing service arising out of and in the course of his employment.

'(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.'

We see then, that to justify compensation, the accident must occur while the employee is performing service arising out of and in the course of his employment, and the accident itself must also arise out of and in the course of the employment. The question is...