London Guarantee & Acc. Co. v. McCoy, 13625.

• Decision Date: 27 May 1935
• Docket Number: 13625.
• Citation: 45 P.2d 900,97 Colo. 13
• Parties: LONDON GUARANTEE & ACCIDENT CO., Limited, et al. v. McCOY et al.
• Court: Colorado Supreme Court

45 P.2d 900

97 Colo. 13

LONDON GUARANTEE & ACCIDENT CO., Limited, et al. v. McCOY et al.

No. 13625.

Supreme Court of Colorado

May 27, 1935

In Department.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Proceeding under the Workmen's Compensation Act by Fay W. McCoy, on behalf of herself and minor son, Arthur H. McCoy, Jr., for the death of her husband, Arthur H. McCoy, claimant, opposed by the Liberty Trucks & Parts Company, employer, and the London Guarantee & Accident Company, Limited, insurance carrier. Judgment affirming compensation award of the Industrial Commission of Colorado, and employer and insurance carrier bring error, and claimant and Industrial Commission assign cross-errors.

Affirmed.

William E. Hutton and J. P. Nordlund, both of Denver, for plaintiffs in error.

Paul P Prosser, Atty. Gen., and M. S. Ginsberg, Asst. Atty. Gen for defendant in error Industrial Commission.

Floyd F. Walpole, of Denver, for defendant in error Fay W. McCoy.

BURKE Justice.

Plaintiffs in error are hereinafter referred to as the London Company and the Liberty Company respectively; defendants in error as Mrs. McCoy, Arthur, and the commission, respectively; and Mrs. McCoy's deceased husband, Arthur H. McCoy, as McCoy.

This is a Workmen's Compensation case. McCoy met his death while in the employ of the Liberty Company, whose insurance was carried by the London Company. Mrs. McCoy, for herself and Arthur, filed with the commission her claim for compensation. The claim was allowed. Plaintiffs in error thereupon took the cause to the district court, which affirmed the award of the commission and entered judgment accordingly. To review that judgment this writ is prosecuted. Eleven assignments present, in various ways, the simple question, Was the accident which caused McCoy's death one arising out of his employment? Two cross-assignments present the contention that the action in the district court was not commenced within the time limited by statute.

For an understanding of our conclusion a brief statement of facts is essential. McCoy was a sales agent of the Liberty Company, in which capacity he was in Pueblo August 26, 1933. His employer had made a deal which necessitated the bringing of an automobile bus from Pueblo to Denver. He was directed to arrange for this. In doing so he found it necessary to get in touch with one Mitchell, whom he knew as 'Dick,' but whose true name, under which he appeared in the telephone directory, was Thomas E. Hence McCoy went to the home of one Decino, father-in-law of Mitchell. McCoy not only knew Decino, but had dealt with him, and they were on friendly terms. Arriving there he found Decino outside the house and greeted him, but received no answer. He then inquired of Decino's young daughter, there present, if he might use the telephone. She answered in the affirmative, and gave him directions. He accordingly entered the house and repeated his request to two other daughters of Decino whom he found there, also asking for Mitchell's telephone number. Having received this, he entered another room, called the Mitchell home, learned that Mitchell was absent and, while talking with his wife concerning her husband's transfer of the bus to Denver, was apparently stabbed to death by Decino. The latter, who had been in the insane asylum for one month in the early part of 1932 and three months in the latter part of that year and early in 1933, and voluntarily returned there after McCoy's death, had apparently suffered a sudden return of his insane delusions, procured a butcher knife from an icebox, entered the room, and struck down McCoy, then chased his daughters and his wife, with murderous intent, until they escaped from him.

The commission made the following 'findings and award':

'The decedent on August 26, 1933, while in the employ of the Liberty Trucks and Parts Company, went to the residence of one Nicholas Decino, to telephone as man by the name of Mitchell, regarding a bus that was to be brought to Denver next day. He secured permission to use the telephone and while telephoning, was stabbed to death by Decino, who was at that time a paroled inmate of the State Insane Asylum.

'The referee finds that the death was due to an accident arising out of and in course of decedent's employment.'

The statute involved is section 4389, p. 1235, C. L. 1921. It specifies the facts essential to recovery in compensation cases. It is conceded that all these were here present save that the accident which caused McCoy's death was one 'arising out of * * * his employment.'

In a case of murder on the highway, we held the accident need not be one which 'might have been anticipated,' but that it was sufficient if 'after the injury, it can be seen that the injury was incurred because of the employment.' Industrial Commission v. Pueblo Auto Co., 71 Colo. 424, 207 P. 479, 480, 23 A.L.R. 348; Industrial Commission v. Hunter, 73 Colo. 226, 214 P. 393.

We have also held, in a 'lighting' case, that 'when one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would...