United States Fidelity & Guaranty Co. v. Industrial Com'n of Colo.

• Decision Date: 13 May 1935
• Docket Number: 13686.
• Parties: UNITED STATES FIDELITY & GUARANTY CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

45 P.2d 895

96 Colo. 571

UNITED STATES FIDELITY & GUARANTY CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 13686.

Supreme Court of Colorado

May 13, 1935

In Department.

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Proceeding under the Workmen's Compensation Law by Mrs. Mary Yuenger, claimant, for compensation for the death of Chris Yuenger, employee, opposed by the Colorado National Bank of Denver, a national banking association, employer, and the United States Fidelity & Guaranty Company, insurance carrier. Judgment of the district court sustaining the Industrial Commission's order, which awarded compensation as death benefit and reversed order of referee denying compensation and the employer and insurance carrier bring error.

Judgment of district court affirmed.

Henry H. Clark and W. Felder Cook, both of Denver for plaintiffs in error.

Paul P Prosser, Atty. Gen., and M. S. Ginsberg, Asst. Atty. Gen., for defendant in error Industrial Commission.

Jacob V. Schaetzel and Merrill A. Knight, both of Denver, for defendant in error Mary Yuenger.

YOUNG Justice.

The claimant, widow of Chris Yuenger, deceased, was awarded death benefits by the Industrial Commission, which award was sustained by the district court. The defendants, Colorado National Bank of Denver, as employer, and the United States Fidelity & Guaranty Company, as insurer, bring the case to this court on writ of error.

The assignments of error may be considered under two heads: First. That under chapter 177, Session Laws 1931, section 1 (page 823), the commission is without authority to set aside the findings of the referee unless it takes additional testimony or has a hearing de novo. Second. That there is no evidence to sustain the findings and award to claimant.

At the conclusion of the testimony the referee made his summary order, as he is authorized to do under section 4470, C. L. 1921, denying any compensation. Subsequently the claimant filed a petition asking the commission to review the order of its referee as provided by chapter 177, Session Laws 1931, section 1. On a review, the commission did not take or order the taking of additional testimony as chapter 177, supra, gives it discretion to do. It made its findings on the record alone, reversed the order of the referee denying compensation, and awarded compensation as a death benefit to the claimant, widow of deceased.

Respondents urge that in reversing the award of the referee without first exercising its discretion to take or ordering the taking of additional testimony, the commission exceeded its authority. They very succinctly state their contention that if it be held that the findings of the commission are binding on the district court and on this court, 'we have the anomalous situation of the commission's factual finding being conclusive on all the courts of the state when the commission is not any differently apprised of the facts than are the courts, and certainly are less experienced in the matter of applying the law to the facts disclosed by the cold record.' Respondents point out that section 4471, C. L. 1921, provides as follows: 'Upon the filing of any such petition the commission shall review the entire record of proceedings in said cause and in its discretion may take or order the taking of additional testimony and shall either affirm the findings and award of the referee or may enter a new finding and award, affirming or reversing the finding or award of the referee in whole or in part.' That section of the statute as amended by chapter 177, Session Laws 1931 (page 823), provides for a petition to review the summary order of the referee and provides further that if the referee shall not amend or modify the order, he shall refer the entire case to the commission and 'the commission shall thereupon review the entire record in said case, and, in its discretion, may take or order the taking of additional testimony, and shall make its findings of fact and enter its award thereon.' Respondents contend that the omission of the italicized portion of section 4471, supra, when that section was amended in 1931, indicates the intention of the Legislature to prevent the commission from making findings and an award contrary to the award made by the summary order of the referee without taking additional testimony. In our opinion the omission of such words in the amendment does not deprive the commission of that power. The statute, as amended, provides for a review by the commission of the order entered by its referee and makes it the duty of the commission to review the entire record in the case. After reviewing the record, the statute leaves it to the discretion of the commission as to whether it will take or order the taking of additional testimony. This matter being discretionary, it follows that additional testimony may or may not be taken. The remaining portion of the statute provides that the commission shall make its findings of fact and enter its award thereon. Where there is an appeal from the referee's order, the making of findings and an award thereon is obligatory on the commission. Otherwise such an appeal would be but an idle gesture. If the taking of additional testimony is discretionary, then such findings and award of necessity will be based on the record, if the commission exercises its discretion and does not take any additional testimony. In brief, if the commission must make an award under such circumstances, and cannot do so on the record, but must take additional testimony, then the taking of additional testimony is not discretionary, a conclusion that would make the two provisions of the statute inconsistent with each other. That the Legislature intended the commission should be a fact-finding body whose conclusions on disputed testimony should be binding on the courts of review is apparent from section 4477, C. L. 1921, which sets forth the only three grounds upon which awards may be set aside by the district court, namely: '(a) That the commission acted without or in excess of its powers; (b) that the finding, order or award was procured by fraud; (c) that the findings of fact by the commission do not support the order or award.'

The cause comes to this court on writ of error, and we can review only what the district court had a right to determine. What constitutes evidence is a question of law. Under the act, the district court therefore, and on review this court, may examine the record to determine whether or not there is anything therein constituting evidence to support the findings of the commission. If there is no evidence in support of the propositions that must be established by a party in order to prevail, then the commission acted in excess of its powers in finding for such party, for the commission is authorized under the law to make an award of compensation only where the necessary prerequisites are established by evidence. From the statutory limitations as to the grounds on which the courts may review the commission's award, it is apparent that even in a case where the commission has never seen the witnesses, it was the legislative intent that the commission's findings of fact nevertheless should be binding on the district court, and therefore binding on this court. While apparently the question has not heretofore been raised in the precise form in which it arises in this case, a long line of decisions of this court holds that the commission is a fact finding body and that its findings are binding on this court. Passini v. Industrial Commission, 64 Colo. 349, 171 P. 369; Weaver v. Industrial Commission, 72 Colo. 79, 209 P. 642; Rogers v. Industrial Commission, 94 Colo. 56, 28 P.2d 343; Empire Zinc Co. v. Industrial Commission, 94 Colo. 98, 28 P.2d 337; Poole v. Industrial Commission, 94 Colo. 163, 28 P.2d 809; Hayden Brothers Coal Corp. v. Industrial Commission, 94 Colo. 211, 29 P.2d (2d) 637; Central Surety & Ins. Corp v. Industrial Commission, 94 Colo. 341, 30 P.2d 253; Boulder Valley Coal Co. v. Shipka, 94 Colo. 394, 30 P.2d 852; Jabot v. Industrial Commission, 94 Colo. 424, 30 P.2d 871; Card Iron Works Co. v. Radovich, 94 Colo. 426, 30 P.2d 1108; Allen v. Gettler, 94 Colo. 528, 30 P.2d 1117.

Having disposed of the first contention of the respondents, it remains only to determine whether there is evidence to support the commission's findings.

There are three questions involved in every workmen's compensation case: (a) Was the death due to an accident? (b) Did the accident occur in the course of the employment? (c) Did the accident arise out of the employment? If there is evidence in the record supporting an affirmative answer to these three questions, then there is evidence to support the commission's findings.

Deceased was employed by defendant bank as a watchman in a large office building. A number of negro janitors were employed in the building. Deceased was the head watchman with no authority to supervise the work of the janitors, but he did have authority and it was his duty to see that all employees were out of the building within a reasonable time after their work was completed; to stop any disturbance or disorder that might arise among the employees or others...