Rio Grande Motor Way, Inc. v. De Merschman, 14122.

• Decision Date: 26 April 1937
• Docket Number: 14122.
• Parties: RIO GRANDE MOTOR WAY, Inc., et al. v. DE MERSCHMAN et al.
• Court: Colorado Supreme Court

68 P.2d 446

100 Colo. 421

RIO GRANDE MOTOR WAY, Inc., et al. v. DE MERSCHMAN et al.

No. 14122.

Supreme Court of Colorado

April 26, 1937

Rehearing Denied May 24, 1937.

In Department.

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Action by the Rio Grande Motor Way, Incorporated, employer, and the Travelers Insurance Company, insurance carrier, to set aside an award of compensation under the Workmen's Compensation Act by the Industrial Commission to Albert De Merschman employee. Judgment affirming the award, and plaintiffs bring error.

Affirmed.

Edward L. Wood and Norman W. Baker, both of Denver, for plaintiffs in error.

Adams &amp Heckman, of Grand Junction, for defendant in error Albert De Merschman.

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

BURKE Chief Justice.

These parties are hereinafter referred to as follows: The Rio Grande Motor Way, Inc., as the corporation; the Travelers Insurance Company, as the Insurance Company; Albert De Merschman, as claimant; and The Industrial Commission of Colorado, as the Commission.

This is a Workmen's Compensation case. Claimant was master mechanic for the corporation, whose industrial insurance was carried by the Insurance Company, at a salary of approximately $250 per month. He was injured November 2, 1931, in an accident arising out of and in the course of that employment. He filed with the Commission his claim under the Workmen's Compensation Act (C.L. § 4375 et seq., as amended), applicable to all parties hereto. From the beginning to the end of hearings, awards, and supplemental awards, he maintained, and the Commission found, that he was totally and permantently disabled. To set aside the final award the corporation and the Insurance Company brought this action in the district court. The court affirmed the award, and to review that judgment this writ is prosecuted. No contention is here made that claimant is not permanently disabled, but it is stoutly maintained that his disability is not total. Such is the sole question of moment Before us.

There is no substantial conflict in the evidence. Claimant's injury was caused by an explosion which deluged him with flaming gasoline. He is afflicted with deep and extensive adhesions due to burns. Various physicians estimated his disability at 65 per cent. to total. One expressed the rather speculative opinion that 'permanent disability could be brought down to thirty-five or forty per cent., probably, by plastic surgery.' Claimant has no special training skill, or fitness for other than auto mechanical work. He testified he was burned so deeply about his shoulders 'it is impossible for the skin to grow back over them and they are left in a bleeding condition most of the time.' 'My arms are bound down to my sides and I can't move them enough to perform any kind of work.' His brother is, and was at the time of the accident, president and general manager of the corporation. Thinking 'it would be a good thing for him to do something in more or less of a supervisory capacity,' he gave him such employment at $175 per month, which his board of directors ordered reduced to $125. This employment appears to arise solely from the corporation's recognition of a 'moral responsibility,'...