Industrial Commission of Colorado v. Diveley
| Decision Date | 24 November 1930 |
| Docket Number | 12663. |
| Parties | INDUSTRIAL COMMISSION OF COLORADO et al. v. DIVELEY. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 29, 1930.
Action by Mrs. Chester L. Diveley to modify or vacate an award of the State Industrial Commission denying compensation for death of plaintiff's husband, Chester L. Diveley. To review a judgment of the district court setting aside Commission's award and directing making of finding and award in favor of claimant, the Commission, and the State Compensation Insurance Fund, as insurance carrier, and the Western Pottery Company, as employer, bring error.
Reversed and remanded, with instructions.
Appeal from District Court, City and County of Denver; E. V. Holland, judge.
Robert E. Winbourn, former Atty. Gen., John S. Underwood, Atty Gen., and Arthur L. Olson, Asst. Atty. Gen., for plaintiffs in error.
John S Fine, of Denver, for defendant in error.
Mrs Chester L. Diveley, defendant in error, hereinafter referred to as claimant, filed before the Industrial Commission of Colorado, one of the plaintiffs in error, hereinafter referred to as the commission, her claim for compensation on account of the death of her husband, Chester L. Diveley hereinafter referred to as employee. In claimant's 'Dependents Notice and Claim for Compensation,' it is asserted that, on August 17, 1930, employee died of peritonitis resulting from a ruptured appendix, which was caused by an accident arising out of and in the course of his employment. A hearing upon this claim before the referee resulted in an order denying compensation, which order was subsequently affirmed by the commission in its findings of fact and award, and in its supplemental award. Claimant commenced an action in the district court to modify or vacate the awards of the commission, and, upon trial in that court, the judgment was that the 'award of the Commission be set aside and the case remanded, and that the Commission be ordered to make a finding and award in favor of the claimant in accordance with the provisions of law.' To review that judgment of the district court, the commission, the insurance carrier, and the employer prosecute this writ.
Chester L. Diveley was, and for several years prior to August 15, 1929, had been, an employee of the Western Pottery Company, in the capacity of night watchman. On the night of August 15, 1929, he was ordered to clean the boiler used at the plant of his employer. To do this it was necessary for him to climb up about ten feet on a ladder to remove the manhead, which weighed approximately 100 pounds, carry it down the ladder to the floor, and then carry it up again to replace it after he had finished the cleaning.
Claimant testified that about 8:00 o'clock p. m. on the night of August 15, 1929, her husband called her on the telephone from the plant and said: 'Mother, in washing the boiler when I lifted that manhead I was severely hurt, because I have got severe pains in the abdomen and I am suffering intensely,' and requested her to send for him. There was no one at employee's home who could be sent at that time and about 1:00 o'clock a. m. Sunday her husband called again, and then claimant sent her son to bring him home. The son testified that when he reached his father at the plant on Sunday morning, August 16, 1929, the following conversation occurred between them with reference to the accident: The employee was removed to his home, and during the night was treated by his wife without the aid of a physician. During Sunday he apparently recovered somewhat, and on Sunday night returned to his regular duties. About midnight Sunday he again called his wife on the...
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