Ocean Accident & Guaranty Corporation, Ltd. v. Pallaro

• Decision Date: 07 April 1919
• Docket Number: 9510.
• Citation: 180 P. 95,66 Colo. 190
• Parties: OCEAN ACCIDENT & GUARANTY CORPORATION, Ltd., et al. v. PALLARO et al.
• Court: Colorado Supreme Court

180 P. 95

66 Colo. 190

OCEAN ACCIDENT & GUARANTY CORPORATION, Ltd., et al. v. PALLARO et al.

No. 9510.

Supreme Court of Colorado, En Banc.

April 7, 1919

Error to District Court, Clear Creek County; Harry S. Class, Judge.

Proceedings under the Workmen's Compensation Act by Mary Pallaro and others for compensation for death of Fred Pallaro, opposed by the Broderick Mining & Milling Company, employer, and the Ocean Accident & Guaranty Corporation, Limited, insurance carrier. Award by Industrial Commission to claimants, and employer and insurance carrier brought action to vacate findings and award of commission. Findings and award confirmed, and employer and insurance carrier bring error. Affirmed.

Chas. W. O'Donnell, of Denver, for plaintiffs in error.

J. W B. Smith, of Idaho Springs, for defendants in error.

ALLEN J.

This action is one which arose from proceedings brought before the Industrial Commission of Colorado upon the claim of one Mary Pallaro for compensation under the Workmen's Compensation Act of Colorado (Laws 1915, c. 179). The claim was made and filed on behalf of the dependents, being the widow and the children, of one Fred Pallaro, who had been killed, as the result of an accident, while in the employ of the Broderick Mining & Milling Company. Upon a hearing, in this matter, the Industrial Commission made its findings and award, and granted compensation to the claimants. Thereafter an action was commenced in the district court of Clear Creek county by the above-named company, which had been the employer of the deceased workman, and the Ocean Accident & Guaranty Corporation, Limited, the insurance carrier for the Broderick Company, to vacate the findings and award of the commission on the ground that the same is unlawful. The district court confirmed the findings and award of the Industrial Commission. The employer and the insurer, above named, bring the cause here for review.

The main question to be determined by this court upon this review is whether or not the admitted facts in the instant case showing the circumstances under which Fred Pallaro met his death, are such that it should be held, as a conclusion of law, and as the Industrial Commission found, that he 'was killed by an accident arising out of and in the course of his employment.' The materiality of this question arises from the provisions of section 8, c. 179, p. 522, Laws of 1915, as amended by section 4, c. 155, Laws of 1917, which reads as follows:

'The right of the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury or death accidentally sustained on and after August 1, 1915, shall obtain in all cases where the following conditions occur:

'(1) Where, at the time of the accident, both employer and employé are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

'(2) Where, at the time of the accident, the employé is performing service arising out of and in the course of his employment.

'(3) Where the injury is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.'

The contention of the plaintiffs in error is, in effect, that, under the undisputed facts in the case, it cannot be said, as a matter of law, that, at the time of the accident, Pallaro was performing service arising out of and in the course of his employment, or that the accident was one so arising.

At and prior to the time of the accident which caused his death Fred Pallaro was employed by the Broderick Mining & Milling Company as a watchman on its premises at the Lamertine mine in Clear Creek county. As such watchman, it was his duty to reside on the premises, and to stay thereon during all hours of the day. The company furnished for his use a cabin, equipped with bedding and a cooking stove. Neither coal nor any other fuel, either for heating or cooking purposes, was supplied by the company, and it was necessary for Pallaro to obtain his own fuel. The immediate surroundings of the cabin furnished no loose wood, in the shape of logs or limbs, that could be used to heat the cabin or cook his food. The premises were situated at an altitude of 10,500 feet above sea level. It was undoubtedly necessary for Pallaro to be supplied with fuel at all times. The only loose timber available was some 600 or 700 yards from the company's premises, and to secure that would require Pallaro to absent himself from the property which he was required to guard continuously. The ground on the premises was covered by spruce or pine stumps, composed of solid matter, and constituting good fuel. Pallaro...