O.P. Skaggs Co. v. Nixon

• Decision Date: 13 September 1937
• Docket Number: 14156.
• Citation: 72 P.2d 1102,101 Colo. 203
• Parties: O. P. SKAGGS CO. et al. v. NIXON et al.
• Court: Colorado Supreme Court

72 P.2d 1102

101 Colo. 203

O. P. SKAGGS CO. et al. v. NIXON et al.

No. 14156.

Supreme Court of Colorado, En Banc.

September 13, 1937

Rehearing Denied Oct. 25, 1937.

Error to District Court, City and County of Denver; Otto Bock Judge.

Proceeding under the Workmen's Compensation Act by John C. Nixon claimant, opposed by the O. P. Skaggs Company, employer, and the American Mutual Liability Insurance Company, insurer. To review a judgment of the District Court sustaining a finding and award of the Industrial Commission granting an award, the employer and insurer bring writ of error.

Affirmed.

William R. Eaton, of Denver, for plaintiffs in error.

Byron G. Rogers, Atty. Gen., and Louis Schiff Asst. Atty. Gen., for defendant in error Industrial Commission.

Herbert E. Mann, of Greeley, and C. E. Wampler, of Denver, for defendant in error John C. Nixon.

YOUNG Justice.

This cause is Before us on writ of error to reverse a judgment of the district court sustaining the finding of the Industrial Commission, and an award based thereon, that John Nixon sustained accidental injuries while performing services arising out of and in the course of his employment by the O. P. Skaggs Company, a corporation. The O. P. Skaggs Company and the American Mutual Liability Insurance Company, a corporation, are plaintiffs in error, and will be designated as the Skaggs Company and insurer, respectively. The Industrial Commission and John C. Nixon, defendants in error, will be herein mentioned as the commission and claimant. The multitude of assignments of error, ninety-two in number, covering twenty-one typewritten pages, fairly present the question of whether the evidence is sufficient to support the commission's finding and award.

This case was Before us on a former occasion, and the decision previously rendered, Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55, should be read in connection with this opinion. The case was remanded to the district court, with instructions to send it back to the commission for definite findings on the question of whether claimant at the time of the accident was performing services arising out of and in the course of his employment. The commission, after taking additional testimony, answered the question in the affirmative, and the district court has approved its findings. If there is evidence to support them, they are binding on us.

The evidence discloses that Nixon was employed by the Skaggs Company to render services, legal in character, and also perform work that might be classed as executive in its nature, not requiring legal training. Such work involved advice as to business policies and methods to be adopted and pursued. It was stipulated in the contract of employment that claimant was to be paid $50 a month for his services. Such business as could be transacted by him in or from his law office, maintained in Greeley, was to be done there. Such as required his presence in Denver was to be performed in Denver, and he was to come to the latter city without additional compensation or expense to the Skaggs Company. He was to give the company the first call on his time, and the evidence discloses that he did so. In December, 1931, claimant was requested to come to Denver for a conference, and in response to that request he traveled there by automobile solely for that purpose and attended to no other business. On this occasion he was given two important contracts by O. P. Skaggs, the president of the company, to take with him to Greeley and upon which he was to render an opinion after he had examined them. As he was returning to Greeley, and near Brighton, he had an automobile accident, resulting in the injuries and disability for which compensation was awarded.

We are of the opinion that the accident arose out of and in the course of claimant's employment, and, while so holding, are cognizant of the general rule stated in Industrial Commission v. Anderson, 69 Colo. 147, 169 P. 135, 137, L.R.A. 1918F, 885, that: 'By the great weight of authority it appears, in the absence of special circumstances bringing the accident within the scope of the employment, that no compensation is recoverable by a workman who is injured while on his way to or from his work.' In that opinion the following is quoted with approval from De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88, L.R.A.1916A, 329: 'If the place at which the injury occurred is brought within the contract of employment, by the requirement of its use by the employee, so that he has no discretion or choice as to his mode or manner of coming to work, such place and its use seem logically to become elements or factors in the employment, and the injury thus arises out of the employment and is incurred in the course thereof. But, on the contrary, if the employee, at the time of the injury, has gone beyond the premises of the employer, or has not reached them, and has chosen his own place or mode of travel, the injury does not arise out of his employment, nor is it within the scope thereof.' We think the controlling principle is set out in the opinion in the Anderson Case in these words: 'Under this section it is necessary that both the service being performed and the injury sustained shall arise out of and in the course of the employment. The intent is to make the industry responsible for industrial accidents only, and not those resulting from hazards common to all. In re McCarthy (Ohio) 7 N.C.C.A. 417, Ohio Ind.Com.No.59526; Worden v. Commonwealth Power Company, (Mich.) 4 N.C.C.A. 853; Hopkins v. Michigan Sugar Company, 184 Mich. 87, 150 N.W. 325, L.R.A.1916A, 310; Hills v. Blair, 182 Mich. 20, 148 N.W. 243, 7 N.C.C.A. 414.'

If the accident occurs while the employee is doing something which the employer has directed and under the contract of employment may require the...