University of Denver v. Nemeth

• Decision Date: 20 April 1953
• Docket Number: No. 16945,16945
• Citation: 257 P.2d 423,127 Colo. 385
• Parties: UNIVERSITY OF DENVER et al. v. NEMETH et al.
• Court: Colorado Supreme Court

Page 423

257 P.2d 423

127 Colo. 385

UNIVERSITY OF DENVER et al. v. NEMETH et al.

No. 16945.

Supreme Court of Colorado, en Banc.

April 20, 1953.

Rehearing Denied May 11, 1953.

Charles W. Sheldon, Jr., Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for defendant in error Industrial Com. of Colorado.

Robert Swanson and Robert B. Palmes, Denver, for defendant in error Ernest E. Nemeth.

KNAUSS, Justice.

This case is before us by writ of error to reverse a judgment of the district court sustaining the finding of the Industrial Commission, and an award based thereon, that defendant in error Nemeth, sustained accidental injuries while performing services arising out of and in the course of his employment by the University of Denver, a corporation.

Nemeth, alleging that he was an employee of the University of Denver, made claim for compensation benefits arising from an accidental injury, which the evidence shows was suffered while Nemeth was playing football on the University of Denver grounds. He was a student regularly enrolled in the College of Business Administration of the University. In April, 1950, while indulging in spring football practice, Nemeth suffered an injury to his back. At the time, he was receiving $50 per month from the University for certain work in and about the tennis court on its campus. There was deducted from this amount the sum of $10 per month for three meals per day, which Nemeth ate at the student cafeteria. In lieu of cash rental for housing accommodations which Nemeth occupied on the campus, he cared for the furnace and cleaned the sidewalks of these premises.

The record discloses that mony other students at the University performed work in and about the stadium, field house and campus, for which they were compensated by the University. Most of these students were paid for work on an hourly basis. Those students who qualified on account of athletic prowess were paid on a monthly basis.

Nemeth maintains that he was employed to play football at the University, and that his injury arose out of and in the course of that employment, and this claim was sustained by the Industrial Commission. On appeal, the district court affirmed the award of the Commission, but from the record determined that the claimant was employed in jobs on the campus, with time off to participate in football activities, and hence such participation in athletic activities was within the scope of his employment and compensable. Judgment was entered affirming the award of the Industrial Commission.

Plaintiffs in error contend: (1) That the University of Denver is solely engaged in the field of education, and its relation with students is not within the purview or intent of the Workmen's Compensation Act, '35 C.S.A. c. 97, § 280 et seq.; (2) that the findings of fact do not support the award, in that the employment, if any, of claimant was casual and not in the course of the trade, business, profession or occupation of the University; (3) that the injury to claimant did not arise out of his employment, nor while he was performing services in the course of his employment; (4) that the award contravenes public policy, and (5) that this court is not bound by the findings of fact of either the commission or the district court.

It is argued by counsel for plaintiffs in error, 'If the award is allowed to stand, the more than 800 students who are presently being assisted to obtain their education at the University of Denver must seek work elsewhere or quit their education.' Therefore, counsel say the findings are against public policy. No authorities are cited in support of this contention, and we are at a loss to see where anything in this record requiring the application of the Workmen's Compensation law to Nemeth's situation in anyway contravenes public policy.

It is admitted that Nemeth was employed by the University and compensated for his work. Counsel for the University insists that he was not employed to play football, but to keep the tennis courts free from gravel and litter. It is admitted that the operation of the University required the services of many persons in order to properly function, these individuals being in addition to the faculty members, those performing clerical and other duties and not enrolled as students. It also is admitted that the University had more than four employees engaged on its behalf at the time Nemeth was injured, thus making it subject to the provisions of the Workmen's Compensation Act. The fact that students augment the funds necessary for their maintenance while attending the University, does not alter the fact that they may be in the category of employees, subject to and entitled to the benefits of the Workmen's Compensation law. This is true irrespective of the amount of their earnings in the discharge of the duties assigned to them. Where, as here, a stipulated monthly amount is paid for a particular service rendered by one who is also a student, it cannot be said that the University is merely 'assisting' the student to obtain an education, and that the student, if injured in the course of his employment, cannot have the benefits of the compensation law.

The University of Denver is a private corporation. It is not in any sense a charitable institution, as that term is known to the law. Workmen's Compensation Acts are being extended even to employees of charitable institutions. In President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, 824, Judge Wiley Rutledge said:

'In line with this view may be mentioned the general extension of workmen's compensation acts and social security legislation to include the employees of charitable institutions. Also, as some of the more recent cases point out, much of modern charity or philanthropy is 'big business' in its field. It therefore has a capacity for absorption of loss which did not exist in the typical nineteenth century small hospital or college.'

Neither can it be said that Nemeth was a casual employee. Higher education in this day is a business, and a big one. The University of Denver with its ten thousand students has, as the record discloses, hundreds of jobs for students and non-students. A student employed by the University to discharge certain duties, not a part of his education program, is no different than the employee who is taking no course of instruction so far as the Workmen's Compensation Act is concerned.

Plaintiffs in error claim that the Workmen's Compensation Act was not intended to apply to students having part-time employment. This interpretation of the Act would result in coverage by the Act for the school janitor, and not for a part-time assistant, who also happened to be a student. We cannot believe that such was the intent of the General Assembly in passing the Act. It cannot logically be contended that there is any purpose of the Workmen's Compensation Act other than to protect all workmen, save those specifically excluded. Consolidated Fast Freight v. Walker, 103 Colo. 347, 85 P.2d 720; Drake v. Hodges, 114 Colo. 10, 161 P.2d 338.

What we have here said is sufficient to dispose of contentions numbered 1, 2 and 4 advanced by counsel for plaintiffs in error.

Counsel for plaintiffs in error states that these opportunities (free meals and a job) 'were extended to Nemeth exclusively by reason of his being a student at the University,' and had no connection with his football activities.

It appears from the record that Nemeth was informed by those having authority at the University, that 'it would be decided on the football field who receives the meals and the jobs.' He participated in football practice, and after a couple of weeks a list of names was read, which list included Nemeth's name, and he was then given free meals and a job. One witness said: 'If you worked hard (in football) you got a meal ticket.' Another testified that, 'the man who produced in football would get the meals and a job.' The football coach testified that meals and the job ceased when the student was 'cut from the football squad.'

Counsel for plaintiffs in error directs our attention to Industrial Commission v. Murphy, 102 Colo. 59, 76 P.2d 741, 115 A.L.R. 990. There, it appeared that no 'time off' was given the employee. The employee was not obliged to play baseball or attend any of the baseball games, and no employee was ever discharged or employed because of baseball. It must be observed in the Murphy case, the finding of the commission was adverse to claimant and was sustained by this Court.

The evidence before the Commission being sufficient to sustain its conclusion that the University was the employer, and Nemeth was one of its employees, as defined by Section 287(b), chapter 97, '35 C.S.A. and amended Section 288(b) appearing in S.L.'47, chapter 232, p. 633, there remains the additional inquiry whether the injuries sustained by Nemeth arose out of and in the course of his employment. It has been repeatedly held in this state, and in every other jurisdiction, that the Workmen's Compensation Act must be liberally construed to give effect to its purposes. Continental Oil Co. v. Sirhall, 122 Colo. 332, 222 P.2d 612; L. B. Cole Produce Co. v. Industrial Commission, 123 Colo. 278, 228 P.2d 808. We have not had before us the exact situation here presented, although courts in other states have found in favor of claimant in somewhat similar circumstances.

'An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.' Caswell's case, 305 Mass. 500, 26 N.E.2d 328, 330; Souza's case, 316 Mass. 332, 55 N.E.2d 611.

An analysis of the cases indicates that the controlling point is whether, under all of the circumstances, the injury arose from something which was...