Kitchens v. Department of Labor and Employment, Division of Labor

• Decision Date: 13 April 1971
• Docket Number: No. 70--562,70--562
• Citation: 486 P.2d 474,29 Colo.App. 374
• Parties: Lemuel H. KITCHENS, Plaintiff-Appellee, v. DEPARTMENT OF LABOR AND EMPLOYMENT, DIVISION OF LABOR, Kaibab Industries, Inc., a corporation, and Associated Indemnity Corporation, a corporation, Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 474

486 P.2d 474

29 Colo.App. 374

Lemuel H. KITCHENS, Plaintiff-Appellee, v. DEPARTMENT OF LABOR AND EMPLOYMENT, DIVISION OF LABOR Kaibab Industries, Inc., a corporation, and Associated Indemnity Corporation, a corporation, Defendants-Appellants.

No. 70--562.

Colorado Court of Appeals, Div. II.

April 13, 1971.

Rehearing Denied May 11, 1971.

Certiorari Denied July 6, 1971.

Samuel Berman, Denver, for plaintiff-appellee.

Peter L. Dye, Asst. Atty. Gen., Denver, for defendant-appellant Dept. of Labor and Employment, Division of Labor.

White & Steele, Stephen K. Gerdes, Denver, for defendants-appellants, Kaibab Industries, Inc., and Associated Indemnity Corp.

DUFFORD, Judge.

This is a workmen's compensation case. The Industrial Commission adopted the findings of the Referee and denied compensation to the claimant, Lemuel Kitchens, for injuries resulting from the accidental discharge of a hunting rifle by a fellow employee. Although the Referee found that the claimant was acting within the course of his employment when the accident occurred, he denied compensation on the basis 'that a loaded rifle is not a hazard of employment which could be reasonably anticipated to arise out of said employment.' On appeal, the District Court reversed the order of the Industrial Commission and ruled that claimant was entitled to compensation as a matter of law. The Industrial Commission; the employer, Kaibab Industries, Inc.; and its insurance carrier bring this appeal from the District Court decision.

Undisputed evidence in the record discloses the following facts. On the morning of the accident, claimant had been given a ride by a fellow-employee, Shephard, to the parking lot of their employer, Kaibab Industries, Inc. While claimant and Shephard were waiting in the parking lot for the arrival of a vehicle which was provided by Kaibab to take its employees from the parking lot to the site of its logging operations, Shephard accidentally discharged his hunting rifle and wounded the claimant in the left foot and right ankle. The rifle was intended to be used for hunting purposes and was not brought for employment purposes. There was no evidence that Kaibab knew of or condoned the carrying of firearms by its employees.

I.

Appellants first challenge those rulings of the Industrial Commission and of the District Court which conclude that the claimant was acting in the course of his employment when the accident occurred. It is argued here that the sole purpose for the hunting rifle being in the pickp truck was the recreational intent of Shephard, the co-employee, and that, therefore, this case is controlled by the cases of Industrial Commission v. Day, 107 Colo. 332, 111 P.2d 1061, and Murphey v. Marquez, 155 Colo. 89, 393 P.2d 553, in which compensation was denied. Industrial Commission v. Day, Supra, involved a police officer who was accidentally shot while attending a police-sponsored turkey shoot. Murphey v. Marquez, Supra, involved roofers who carried shotguns on the job site to shoot pigeons. In each of these cases the claimant was an active participant in the recreational activities which our Supreme Court determined to be outside the course of the claimant's employment. The instant case is distinguishable on the basis that the claimant here was not participating in any recreational activities which led to his injury. He had not at any time 'stepped aside' from the course of his employment.

More directly in point is State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591, in which the Supreme Court ruled that an employee was entitled to compensation. In that case, the claimant was injured when he was crossing a public street which bisected the premises of his employer while on his way to the place where parking space was assigned to him on the premises of the employer. Also See Divelbiss v. Industrial Commission, 140 Colo. 452, 344 P.2d 1084.

In the case now before us, it is true that claimant's actual pay did not start until he arrived at the site of the logging operations, but the nature of those operations required Kaibab, the employer, to furnish transportation for its employees from the parking lot to the site of actual logging operations. As a corollary, it was also required that the employees be within the parking lot to await that transportation. Under these circumstances, the decisions in Walter and Divelbiss apply, and the conclusion of the Industrial Commission, and of the District Court, that the claimant was acting within the course of his employment when the accident occurred was correct.

II.

Appellants also contend that, even if the claimant was within the scope of his employment, his injury was not compensable because it was of a type and resulted from an instrumentality not ordinarily common to his employment. That being the case, it is their position that it did not 'arise out of his employment' as our statute requires.

The cases principally argued by appellants in support of their position are Rocky Mountain Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868, and McKnight v. Houck, 87 Colo. 234, 286 P. 279, which are both gunshot-injury cases.

The Kruzic case involved a logger who was shot by an outsider while in the...