L.B. Cole Produce Co. v. Industrial Com'n

• Decision Date: 05 February 1951
• Docket Number: No. 16582,16582
• Citation: 228 P.2d 808,123 Colo. 278
• Parties: L. B. COLE PRODUCE CO. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

Page 808

228 P.2d 808

123 Colo. 278

L. B. COLE PRODUCE CO. v. INDUSTRIAL COMMISSION et al.

No. 16582.

Supreme Court of Colorado, en Banc.

Feb. 5, 1951.

Richard E. Conour, Elizabeth A. Conour, Del Norte, for plaintiff in error.

John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., Donald C. McKinley, Asst. Atty. Gen., for defendant in error, Industrial Commission.

Raphael J. Moses, Alamosa, for defendant in error, Garcia.

MOORE, Justice.

This is a proceeding under the Workmen's Compensation Act.

The claimant, Dolores LaCome Garcia, is the mother of Ateado Fred LaCome who was killed in an accident on April 26, 1948, at Santa Fe, New Mexico. The accident resulting in the death of said LaCome is alleged to have occurred in the course of his employment by The L. B. Cole Produce Company which conducted a produce business at Alamosa, Colorado.

Proceedings before the Industrial Commission resulted in an award in favor of claimant. In an appropriate action instituted in the district court of Alamosa county the award of the commission was affirmed, and judgment entered in favor of claimant. The cause is presented here by writ of error for a review of that judgment.

Reversal is sought upon four grounds, as follows:

1. The deceased LaCome was not injured in an accident arising out of and in the course of his employment.

2. Total dependency of claimant upon deceased was not established as required by law.

3. If claimant is entitled to an award, it should be reduced by fifty per cent for the reason that deceased was guilty of a wilful violation of a reasonable safety rule.

4. The trial court was without authority to enter a money judgment against plaintiff in error. The award of the commission contained findings of fact which included the following:

'Ateado Fred LaCome was employed by the above-named respondent employer as a truck driver and roustabout. He was one of four persons employed by respondent, who carried no compensation insurance as required by law.

'LaCome was killed on April 26, 1948, in a highway accident en route to Albuquerque, New Mexico, while driving a truck load of eggs. The accident arose out of and within the course of decedent's employment.

'LaCome and his helper had left Alamosa some time during the preceding evening, which the employer contends was strictly against his orders. The Referee, however, finds in the evidence that claimant [decedent] was not directed to commence his journey at a time certain or, more particularly, that he was not prohibited to begin said journey at any time after the truck was loaded.'

The commission further found that 'claimant was totally dependent upon her deceased son within a reasonable time prior to his death.' The award further provided:

'Further Ordered: That the respondent employer pay to the Pueblo Savings and Trust Company of Pueblo, Colorado, as trustee, the sum of $8,341.25, said amount equaling the present value of all unpaid compensation and benefits computed at the rate of 4% per annum; or in lieu thereof, that such employer shall, within ten days from date of this Order, file a bond in the sum of $10,000 with this Commission, signed by two or more responsible sureties, to be approved by this Commission or by some surety company authorized to do business within this State, guaranteeing the payment of compensation hereinabove ordered in the sum of $8,216.25, plus $125.00 for funeral expenses heretofore paid by the claimant.'

The employer carried no compensation insurance, as required by law, by reason of which the award of the commission included a fifty per cent penalty, under the provisions of section 306, chapter 97, '35 C.S.A.

The contention here made by the employer, that the death was not caused by an accident arrising out of and in the course of the employment of deceased, is based upon the assumption that there is no evidence contrary to that of the employer. He testified that LaCome was under instructions not to drive the truck at night; that he was not to start the trip from Alamosa to Albuquerque until about seven o'clock in the morning on the day he was killed; and that, in violation of these instructions, he started the trip at night and arrived in Santa Fe, New Mexico, where he was killed, before the hour when he was supposed to begin his work as an employee of plaintiff in error. The employer called one other witness in corroboration of these statements; however, other persuasive evidence, circumstantial in nature, was presented, which tended to contradict the truth of these assertions. In this connection the judge of the district court in reviewing the record said:

'There is a distinct clash in the evidence, as shown by the record, in some places that are such that I don't think I could resolve them and pick the truth out of the situation from the printed pages before me. It is sufficient to say that there is substantial evidence on all of the points challenged in the findings to support the finding of the Commission.'

We have read and re-read the record before us and conclude...