Lindsay v. Public Service Co. of Colo.

• Decision Date: 29 May 1961
• Docket Number: No. 19703,19703
• Citation: 362 P.2d 407,146 Colo. 579
• Parties: Shirley A. LINDSAY; Terri Ann Lindsay, a minor; Jeffry Lindsay, a minor; and William Douglas Lindsay, a minor; each of said minors by their mother and next friend, Shirley A. Lindsay, Plaintiffs in Error, v. PUBLIC SERVICE COMPANY OF COLORADO and the Industrial Commission of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 407

362 P.2d 407

146 Colo. 579

Shirley A. LINDSAY; Terri Ann Lindsay, a minor; Jeffry Lindsay, a minor; and William Douglas Lindsay, a minor; each of said minors by their mother and next friend, Shirley A Lindsay, Plaintiffs in Error, v. PUBLIC SERVICE COMPANY OF COLORADO and the Industrial Commission of Colorado, Defendants in Error.

No. 19703.

Supreme Court of Colorado, In Department.

May 29, 1961.

Williams, Erickson & Brown, Denver, for plaintiffs in error.

Lee, Bryans, Kelly & Stansfield, Robert F. Thompson, Denver, for defendants in error.

DOYLE, Justice.

The present writ of error to the district court of the City and County of Denver seeks review of a judgment affirming an order of the Industrial Commission, which order denied death benefits under the Workmen's Compensation Act to the surviving wife and children of William D. Lindsay, deceased, who met his death following an injury incurred in a softball game.

At the time of his death Lindsay was in the employ of the Public Service Company in a job which was entitled 'Junior Domestic Appliance Representative.' The evidence before the commission disclosed that Lindsay, in common with other members of the Public Service Company, was a member of the Gas and Electric Club, an organization which manages various employee recreation activities such as baseball, basketball, bowling, golf, a company picnic and an annual smoker. All male employees of the Public Service Company automatically become members of this organization although they are not required to pay dues. The expenses are wholly paid by the company and in the year 1959 these amounted to $19,254 of which $1,225 was spent on softball. This club is managed by a board of directors consisting of 12 employees who serve in groups of four for three year terms. Each year the retiring directors are a nominating committee to choose their successors, each of the new directors coming from one of the company's four principal divisions. This board meets 10 times per year and the members serve as chairmen of committees which have to do with particular activities. This club has no formal written constitution but does have a set of by-laws which serve to define procedures and activities. The annual budget is set by the directors and approved by the company, definite amounts being allocated to particular activities, among which is the publication of a newspaper. There are eight softball teams which play in an intra-company league. Each team is composed entirely of company employees through the G and E Club. A fee of $50.00 is paid annually out of the budget allotment to the city recreation department to compensate for expenses connected with the use of playing fields and facilities. Equipment is furnished by the company and the uniforms display a company symbol used in company advertising which is called 'Reddy Kilowatt.' Although company time is used for various administrative aspects of the softball program, company time is never used for practice or for playing games (softball, that is). That there was no compulsion to participate seems undisputed.

On the basis of the above evidence, the referee ruled that the company contribution was merely a gratuity and further held that the injury and death was not proximately caused by an accident arising out of and in the course of the employment. The commission affirmed this ruling and the district court affirmed the commission.

In urging that the court committed error, the claimants make these points:

1. That the Act must be liberally construed to give effect to its beneficent purposes and objectives; that an activity is within the scope of the Act if it is conditioned or even an incident of the employment.

2. It is said that off-hour recreation financed and managed by the employer for the benefit of its employees is an incident and a condition of the employment.

The Public Service Company argues that the activity which gave rise to this injury was in no sense a condition or even an incident of the employment; that it was carried on purely for the benefit of the employees and was entirely voluntary; that thus the order denying compensation is fully supported by the evidence and the law.

Thus the issue for determination is whether an injury incurred in a sports program, conducted in off-hours and away from the premises in a public park and which sports program is financed by the company but in part supported by the municipality, wherein the advertising value to the company is negligible and the benefit to the company consists entirely in the improvement of employee morale, is compensable.

A considerable body of law has developed in this recreation category during the past several years and, although there is no Colorado decision directly in point, there are related cases which at least suggest the controlling criteria. These include Industrial Commission v. Murphy, 102 Colo. 59, 76 P.2d 741, 115 A.L.R. 990; Industrial Commission v. Day, 107 Colo. 332, 111 P.2d 1061; University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423; and State Compensation Insurance Fund v. Industrial Commission, 135 Colo. 570, 314 P.2d 288.

In the Murphy case a group of employees of a mining company organized themselves into a baseball team and obtained financial assistance from the employer. The claimant, who was the self-appointed team manager, was injured in an automobile accident while returning from a game. Compensation was denied. The Court said:

'No definition of 'arising out of and in the course of employment' to be found is this jurisdiction can be stretched to cover the instant case. * * *' [102 Colo. 59, 76 P.2d 742].

The Court emphasized the fact that the ball game was played off the company premises and occurred on a Sunday and that the injury did not occur in the game but was suffered while traveling from it.

On similar reasoning, compensation was denied to a police officer who was injured at a turkey shoot sponsored by the Police Protective Association in the Day case, supra. Here the emphasis was placed on the fact that the activity was conceived and managed by fellow officers although encouraged by the employer. It appeared that the department had a separate mandatory training program for the purpose of promoting efficiency in the use of firearms. Membership in the Police Protective Association was shown to be optional. The Court said:

'* * * We cannot differentiate between this 'turkey shoot' and an ordinary hunting excursion, or a foot race, conceived and managed by Day's fellow officers, encouraged thereto by their superiors. Participation in either might be remotely beneficial and inspirational, but fall far short of being official duties. The fact, if it be a fact, that this accident arose 'in the line of' Day's duties by no means forces the conclusion that it arose out of his employment. Full payment does not establish that the department so held, and if it did, that construction could not bind the fund.' [107 Colo. 332, 111 P.2d 1062].

In the Nemeth case the claimant suffered injuries during spring football practice at the University. The evidence showed him to be the recipient of a football 'scholarship.' Under it he received three meals per day and $50 per month so long as he remained on the football squad. Based upon the fact that the condition of employment was his continued football playing compensation was granted. In upholding the award of the commission the Court speaking through Mr. Justice Knauss said:

'In the instant case the employment at the University, so far as Nemeth was concerned, was dependent on his playing football, and he could not retain his job without playing football. The evidence before the Industrial Commission was to the effect that his job and other remuneration incident thereto came to an end when he ceased to 'make good' in football. Under the record as here made, the Commission and the District Court may have properly concluded, as they did determine, that Nemeth was an employee of the University and sustained an accidental injury arising out of and in the course of his employment.' [127 Colo. 385, 257 P.2d 427].

In State Compensation Industrial Fund v. Industrial Commission, supra, the claimant was injured while playing football for the State College. Because of the remoteness of the connection between football playing and his employment, compensation was denied. Here it was shown that the claimant had an athletic scholarship under which tuition was waived. He was paid 70cents per hour for various work on the college farm and in the student lounge. It was shown...