Olson-Hall v. Industrial Com'n of Colo.

• Decision Date: 06 March 1922
• Docket Number: 10269.
• Parties: OLSON-HALL v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

205 P. 527

71 Colo. 228

OLSON-HALL v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 10269.

Supreme Court of Colorado, En Banc.

March 6, 1922

Rehearing Denied April 3, 1922.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Proceeding under the Workmen's Compensation Law (Laws 1919, p. 700) by Augusta Olson-Hall to recover compensation for the death of her husband, John Olson, employee, opposed by the Up-the-Divide Theatre Company, employer, and the Continental Casualty Company, insurance carrier. Action of the Industrial Commission in denying recovery was affirmed oy the district court, and claimant brings error.

Affirmed.

See also, 69 Colo. 518, 194 P. 212.

David B. Graham and William H. Gabbert, both of Denver, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for Industrial Commission.

Dana Blount & Silverstein, of Denver, for Up-the-Divide Co. and Continental Casualty Co.

BAILEY J.

This cause is here a second time. Upon the former review it was remanded to the Commission for fuller and more specific findings. At the first hearing recovery by claimant was denied. Upon further findings compensation was again denied. The first award was reviewed by the District Court and affirmed. After further findings by the Commission again the cause was taken to the District Court and the action of the Commission in denying compensation was there again upheld. It is to review that judgment that claimant now brings the cause here.

The essential facts are that claimant's decedent, John Olson, died at a hospital on October 12th, 1918. The record shows that he claimed to have fallen from a ladder while at his work for the Theatre Company on June 9th, 1918. His widow and beneficiary claimed that the accident occurred on June 15th, 1918, but for the purposes of this decision the discrepancy in date is not important.

There is no direct proof of the accident. The claimant supports her case wholly with certain reports, and alleged conversations said to have taken place with Olson at various times subsequent to the supposed accident, at his home and at the hospital where he died. There is not a scrap of competent testimony to show that there ever was an accidental injury at all.

It is elementary in compensation cases, as in other actions, that the burden of proof is upon the party asserting the claim. It was the duty of claimant to show that the death of her husband was the proximate result of an accident arising out of and in the course of his employment. The alleged fall from the ladder took place either on June 9th, or June 15th, 1918. The decedent was then upwards of sixty years of age. For approximately four months after the accident he was under the care of at least three physicians, who apparently discovered no evidence whatever of his having met with an accident. Each of them treated him for an organic disease. After his death an autopsy was held, which disclosed at least one serious chronic ailment, that another was developing, and that none of these conditions, in the opinion of physicians, was likely to have resulted from a fall, either recent or remote. On the contrary, the medical testimony was practically unanimous that decedent died from pericarditis and hypostatic pneumonia.

There is some testimony which tends to show that there was a possibility of the pericarditis having resulted from an external injury. The only effect of this testimony, however, is to furnish a conflict, and the findings of the Commission, on conflicting testimony, is conclusive upon the courts. The rule as to fact findings is laid down in Passini v. Industrial Commission, 64 Colo. 349, 171 P. 369, as follows:

'This court may consider only the legal question of whether there is evidence to support the findings, and not whether the Commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the Commission, where supported by evidence, or reasonable inference to be drawn therefrom.'

See also Prouse v. Industrial Commission, 69 Colo. 382, 194 P. 625; Industrial Commission v. Johnson, 66 Colo. 292, 181 P. 977; Globe Co. v. Industrial Commission, 67 Colo. 526, 186 P. 522; Industrial Commission v. London, etc., Co., 66 Colo. 575, 185 P. 344.

Error is assigned upon the refusal to admit in evidence an wholly unidentified written statement of the employer respecting a claim of Olson as to the accident; and also because of the exclusion of dependent's notice of the accident and claim for compensation. Also to the exclusion of statements made by the deceased at various times long subsequent to the alleged accident. These offers were properly excluded. It is true that the Workmen's...