State Compensation Ins. Fund v. Batis

• Decision Date: 30 June 1947
• Docket Number: 15867.
• Citation: 117 Colo. 1,183 P.2d 891
• Parties: STATE COMPENSATION INS. FUND et al. v. BATIS et al.
• Court: Colorado Supreme Court

183 P.2d 891

117 Colo. 1

STATE COMPENSATION INS. FUND et al. v. BATIS et al.

No. 15867.

Supreme Court of Colorado, in Department.

June 30, 1947

Error to District Court, City and County of Denver; John R. Clark Judge.

Action by State Compensation Insurance Fund, insurer, and Union Coal Operating Company, a copartnership, employer, against George Batis, Industrial Commission of Colorado, Paul J. Moynihan and the Travelers Insurance Company to review an award of the Industrial Commission granting compensation to George Batis claimant. To review a judgment affirming the award plaintiffs bring error.

Judgment affirmed.

Harold Clark Thompson and Louis Schiff, both of Denver, for plaintiffs in error.

L. F. Butler, Edward L. Wood, Burton Crager, H. Lawrence Hinkley, Duke W. Dunbar and Barbara Lee, all of Denver, for defendants in error.

HAYS Justice.

George Batis, a coal miner, under circumstances, presently to be stated, was awarded compensation by the Industrial Commission of Colorado against the Union Coal Operating Company, a copartnership, the employer, and State Compensation Insurance Fund, the insurer, for injuries received to his left arm and left eye as a result of an automobile accident occurring while he was going to work. Being dissatisfied with the award, the State Fund and Coal Company instituted an appropriate action in the district court under the provisions of section 378, chapter 97, '35 C.S.A., against Batis, the Industrial Commission, Moynihan and the Travelers Company to procure a vacation of the findings and award of the commission and for the entry of judgment denying the claim. On due hearing the court upheld the orders of the commission, and the cause is presented here for a consideration and determination of the legal questions involved.

Only two questions are presented for our consideration: (1) Is Batis entitled to compensation? (2) If so, who is liable for the payment thereof, State Compensation Insurance Fund, or the Travelers Insurance Company?

With respect to the first question, section 294, chapter 97, '35 C.S.A., authorizes recovery where the 'employee is performing service arising out of and in the course of his employment', or 'Where the injury * * * is proximately caused by accident arising out of and in the course of his employment, * * *.'

Does Batis come within the purview of the above statute? The pertinent facts with respect to the first point are, that the claimant resided at Oak Creek, Colorado, and the coal mine, in which he was employed was located at Phippsburg, a distance of approximately four miles from that town. He rode to and from his work in a pickup truck furnished by his employer. On September 29, 1945, while going to his work the pickup truck collided with another car, resulting in claimant's injuries, for which he was awarded compensation.

The general rule as to liability where the accident occurs upon a street or highway from causes to which the public generally is exposed is announced in Industrial Commission of Colorado v. Anderson, 69 Colo. 147, 169 P. 135, L.R.A.1918F, 885, as follows: 'In the absence of special circumstances bringing the accident within the scope of the employment, no compensation is recoverable by a workman who is injured while on his way to or from work,' and numerous cases are cited in which compensation was judicially denied to workmen injured on public thoroughfares.

There are, however, well recognized exceptions to the above rule, which exceptions also are noted in the above case, where there exist special circumstances bringing the accident within the scope of employment or where by the contract of employment the employer agreed to furnish transportation. Comstock v. Bivens, 78 Colo. 107, 239 P. 869; State Compensation Insurance Fund v. Industrial Comm., 89 Colo. 426, 3 P.2d 414; Wells v. Cutler, 90 Colo. 111, 6 P.2d 459; Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102; Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158

In the instant case, claimant testified that as a part of his contract of employment his employer had agreed to furnish him with free transportation to and from his work. While there was positive evidence to the contrary, the referee found 'As one of the terms of the contract of said employment, the said Union Coal Operating Company agreed to transport the claimant from his place of residence to the place of his work. * * *

On September 29, 1945, while being transported from the place of his residence to the place of his work by said subcontractor the claimant suffered injuries accidentally incurred arising out of and in the course of his employment.' The above finding of the referee was approved, affirmed and adopted by the Industrial Commission and the district court, and we are bound thereby.

The principal question involved herein is, Who is liable for the payment of the compensation awarded, the State Compensation Fund or The Travelers Insurance Company? The facts necessary for a proper consideration of the above question are in substance: The Union Coal Operating Company, a copartnership, herein referred to as the Coal Company, consisting of W. M. Ross, L. K. Spitzer, J. C. Moore, and Paul J. Moynihan, began the operation of the Seven Points Coal mines located near Phippsburg, Colorado, October 5, 1944, and continued to September 17, 1945, when by subcontract or sublease the operation thereof was turned over to Moynihan, one of the partners; Moynihan was in active charge of said mine at the time of the accident herein in question and has been foreman of the mine for the partnership prior to the date of said subcontract; the pickup truck involved in the accident with the name 'Moynihan' painted on the side thereof was at all times owned by Moynihan, but used by the partnership; at the time of the accident, September 29, 1945, and at all times from October 13, 1944, to October 1, 1945, there was in full force and effect a policy of compensation insurance on the State Compensation Insurance Fund, herein called Fund covering all employees of the Coal Company; the Fund was not notified until four days after the accident, to wit, October 2, 1945, that the Coal Company had contracted out the operation of the mine and no notice of cancellation was given by the Fund to the Coal Company until December 3, 1945, two months after the accident; no proof was furnished by the Coal Company to the Fund at any time that Moynihan had become an employer and secured compensation insurance as required by endorsement on said policy, and authorized by statute. Section 326, chapter 97, '35 C.S.A. provides: 'Any person, company or corporation operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof to any lessee, sublessee, contractor or sub-contractor, shall irrespective of the number of employees engaged in such work, be construed to be and be an employer as defined in this article, and shall be liable as provided in this article to pay compensation for injury or death resulting therefrom to said lessees, sub-lessees, contractors and sub-contractors and their employees, and such employer as in this section defined shall, Before commencing said work insure and shall keep insured his liability as herein provided and such lessee, sub-lessee, contractor or subcontractor, as well as any employee of such lessee, sub-lessee, contractor or sub-contractor, shall each and all of them be deemed employees as defined in this article. Such employer shall be entitled to recover the cost of such insurance from said lessee, sub-lessee, contractor, or sub-contractor, and may withhold and deduct the same from the contract price or any royalties or other money due, owing or to become due said lessee, sub-lessee, contractor, or sub-contractor; provided, however, that if said lessee, or sub-lessee, contractor or sub-contractor doing any work as in this section provided shall himself be an employer as defined in this article in the doing of such work and shall Before commencing said work insure and shall keep insured his liability for compensation as herein provided then and in that case such person, company or corporation operating, engaged in, or conducting said business shall not be subject to the provisions of this section. L. '19, p. 717, § 49; C.L., § 4423.' (Italics ours.)

The Basic Manual of Rules of the commission as set forth in the stipulation between the parties, provides: '2. Underwriting Basis. The liability under the Workmen's Compensation Act of Colorado of each legal entity shall be insured separately and the policy shall be issued by one insurance company to cover the entire operations of the...