*1 cause reversed Accordingly, remanded with same. instructions to dismiss the Holland Justice dissents.
Mr. 16,997.
No. Surety Company Casualty et al. Aetna et Commission al. Industrial 961) (255 P. [2d] Rehearing April 13, 1953. 1953. denied March Decided P; Beck, Mr. John error. plaintiffs Attorney W. Mr. Mr. General, Duke H. Law- Dunbar, Deputy, Dye, Assistant, Mr. rence Peter Hinkley, L. for defendant in error Industrial Commission.
Mr. Gilbert L. in error McDonough, for defendant Roberts.
En Banc. Justice Holland Mr. opinion delivered of court. presented judg- cause here for review aof
This affirming ment of the district an award court of Industrial Commission made to claimant Roberts under Compensation question the Workmen’s Act. The sole for determination is re- accident, whether or not the sulting injury to claimant, out of and in the eye arose employment. course of his He an result lost as the being by gunshot of stray pheasant a hit employees with some of a In business other customer. hunting trip did words, this have a causal and direct employment connection simply with his because such a claim is made? surety company, plaintiff will herein refer to parties to error, insurer; as the other as and
claimant; and the Industrial Commission, of the de- one designated in error, fendants will be as the commission. finding, adopted by The referee’s commission, injury was to the effect that claimant’s arose and out of employment, course of and the commission requiring respondents pay compensa- made an award per tion to claimant at the rate of week on De- $28.00 through January cember 1951 11, 1952 on account temporary disability, total and thereafter at same period permanent rate partial for a weeks for disability, payment necessary and for the medical physician hospital expenses and and incurred within exceed accident, not six date of the months judicial proceeding, the course, in a $1,000.00. In due and commission award of the court affirmed the district review. is before us its employed as Denver and is a resident
Claimant is Wyoming, with paint in Colorado salesman paints promoting manufactured duties of the sale employer; dealers; and demonstrate new to establish painters. newly em- developed techniques He ployed salary allowance an with on and commission painters to expenses dealers entertainment went promote good will. On December 1, Sterling, pheasant season to being open, and the Colorado, again day on he hunted alone Monday, day, De- Sunday On the next friend. Com- 3, he on the Platte cember called inventory mer- Sterling pany an made *3 quick a paint forenoon; had in store chandise in its the hunting pheasant lunch, and in the afternoon went yard Sterling twenty-five boss with a about miles company. two About a truck for the same and driver yard hunting with the afternoon, while o’clock the permission in field, driver a without boss and the truck right eye by a shot owner, hit the of the claimant was gun was driver the latter truck from the injury shooting pheasant. hunt- a This terminated at where, ing expedition returned to Denver, and claimant eye attention, the was medical removed. after dispute about the and the facts, be no There seems support finding question posed does the is, evidence affirmance, commission its and award “per- was time of accident claimant that effect at arising forming out of and in the course of his service support employment,” does evidence the award proximately by injury caused an acci- was in that the employment? his the course of within dent approach precise question to the The is to first originated accident in a risk whether determine th.e peculiar proving employment. burden to the The question upon by attempting claimant, to estab- was not by acquiesced might lish custom what been a have on other but facts of occasions, his present preponderance evidence situation. The performing con- must show work that claimant was job unques- nected with outlined. It his as hereinbefore tionably appears the area was attracted to that claimant engage pheasant own where for his he could pleasure, arriving hunted he area, when in the because, day day, all con- alone; one a the next with friend not customer; nected with the a activities of his business as day, happened, the third when the he accident Company, but not with the the Lumber heads of yard with a boss and a be truck driver. Even if it could entertaining parties said he with him on nothing undisputed provided the hunt, it is guns, transportation, entertainment, their no no no am- place provide munition, no and did license, not procuring permission to. hunt, not even of the land- happened, owner where the penditures no accident and made ex- trip. provided whatever for the He his own hunting companions lunch and his did likewise. There nothing is to in the evidence to show that he was directed
provide hunting trip particular for these individuals, participate superiors or fact, and in it, knew nothing arrangement,, which of his seemed to be one of largely pleasure. his own selection and own circumstances indicate that claimant’s interest hunting trip companions, was to have their elasticity do not entertainment. believe that the Compensation permits Act Workmen’s the stretched it to be *4 cover the situation before us, where vir- tually only supporting testimony question the on the injured of whether claimant was the course of employment, his own statement to that effect. Any acquiescence in claimant’s former activities of this employer, according by his sort to a letter introduced in
229 approval claimant’s entertainment evidence, good good prospects, not include did or customers employees such as was the entertainment of subordinate the case here. all exposed a risk common himself
Claimant group, knew of in a and when he who are unnecessarily the increased testified, he he as hazard, injury ex- He was risk therefor. recover cannot posed day awas and it before to this hazard on the exposed “equally hazard to which he have been would apart employment.” Commission the Industrial ob- see no 69 Pac. 135. We Colo. 169 Anderson, place ligation part where be claimant to at the on the doing injured thing engaged or he was the time. apparent at in its commission,
It is tempt controlled award, a an to find basis for largely by en other had at times fact that territory throughout which tertained for customers paid expense; further, found had years owners had hunted with the for Company employees knowledge paid employer’s such and it had with the provide trips. award not a basis an This does upon present must because the award be based case, consideration, on what case under and not facts of the nothing happened occasions. find had other assumption com that discloses the the evidence claimant had ever hunted mission to the effect that company owners of lumber nor with its management. To come within classification of must be shown that such conduct conduct,” it “course of regular practice as to is such continuous constitute instance, An occasional such as is course conduct. establish custom, does such a be us, before case proof custom must of such a be clear and con cause the Sign vincing Alden duration. P. Co. v. Roblee, as to (2d) 867. The conclusions of the com- Colo. *5 findings, positive on fact and mission are not based finding course that accident arose out of sup- employment therefore a conclusion not is ported by the evidence. re-
For the reasons herein indicated, the with versed and cause district court remanded to the Commis- directions to return the the Industrial case to sion with it vacate award to claim- instructions that its ant and dismiss the claim. Justice Moore dis- and Mr. Chief Justice Stone
Mr. sent.
Mr. Justice Moore dissenting. expressed respectfully
I dissent in the views findings majority opinion In- in this case. The upon questions dustrial Commission material involved were as follows: testimony paint
“The shows claimant was respondent employer salesman ter- his ritory Sterling, town included the Colorado. ordinary expenses claimant was allowed the usual hotels, meals, his and his car, allowed expenses reasonable to entertain customers. On the Saturday preceding 3, 1951, December claimant went to Sterling, purpose calling for the Colorado, on call, morning trade and did, of December 3, 1951, Valley Company, on the Platte Lumber where Valley Company’s checked the Platte stock paint usually gave Acre, one Mr. who or- paint ders for Valley to restock the Platte Lumber Com- pany’s paint inventory. On December checking inventory worked with Mr. Acre until noon, about when the claimant, Luft, Mr. Acre, and Mr. yardman truck driver and for the Lum- Company, pheasant hunting ber trip went on a Sterling, rural area near and it was in the course eye right sight hunting trip that claimant lost the reason of a accident. claim- the evidence that “The Referee finds from per- different ant had on occasions entertained several *6 Company Valley Lumber sons the Platte connected with territory throughout and that and other his customers on included the each had these occasions the entertaining had expense expense which account, in his paid by respondent employer. been the vehicle the “The further Referee finds that hunting expedition 3 was December on furnished for the Company by Valley the Lumber owned employes one of Valley Lumber and that one of the Platte Company employes the ranch which selected the by done, claimant, to be nevertheless the hunting trip, engaging his in said in the course by furthering employer’s employment and business among creating good friendship his customers will authority employes place had orders and the who to the with the claimant. prac-
“The Referee further finds that the claimant’s pheasants with Platte tice of employes Company had been in owners and existence years by respondent number known the manager employer’s City the sales Kansas and that expense hunting trips had incurred incident to said by respondent employer. past paid been the the further finds from the evidence “The Referee accident of and in the course of claimant’s arose out employment scope within the Work- and comes compensated Compensation and should Act be men’s Act.” under the terms of the com- an of evidence before the
There was abundance findings. By support the reversal of these mission to nullify findings of fact this cause we the though by commission, even the evidence all made findings. directly support those substitute tends concerning weight appraisal evidence, our own 232 printed page,
and, from the cold overturn conclu- although sions of the evi- commission one word of by any person dence was offered or other by in contradiction of claimant. the statements made governed by findings refusal of our court to be appears fact this case is indicative of what abe diminishing respect adjudication by for the facts fact-finding trial courts and other bodies. Thus the majority opinion does violence to elemental rule in proceedings findings on error, that of fact are be ac- cepted by appellate courts the absence aof clear showing of error.
It cannot be said facts as found the com- sought. mission do not entitle court has to the relief Our recognized general applied by rule Skaggs commission to the facts In case. Co. (2d) quoted Nixon, approval Colo. P. 1102, we following: employee doing “Where an *7 something though strictly which, line obligatory duty, doing something is still incidental to his doing injured, work, and while the same is the accident causing injury may properly be held to arise out of employment, the course will he be entitled to compensation.” applied repeatedly This rule been has to cases similar to the instant cause.
In the case of Dill, Ohlsen v. Minn. 23 N.W. (2d) compensation was awarded for the death of an employe fishing trip who was drowned on a which had arranged by employe been said with two It customers. policy company was the custom and of the in that case, as in pros- the case bar, at to entertain customers and pective fishing trips. up- customers on In holding compensation award the court said: “We fairly hold that evidence established here it policy company was the to entertain customers prospective customers; that decedent was so ad- instructed; vised and that he carried out said instruc- successfully tions and increased the business of the thereby; fatal accident company time of at the pros- entertaining or a engaged a customer pursuant such pective to customer of his employ- policy part duties and and instructions as ment.” contrary con- the statements clear that,
Thus it is majority opinion, the well-established tained in the persons going trips who custom of actually gave claimant, orders merchandise determining weight whether entitled to considerable em- of his in the course accident arose out of and ployment. opinion Commercial To like is the effect (Texas), Casualty 44 S.W. v. Strawn Insurance Co. (2d) 805. any majority' opinion much mention of
The omits support specific tending strongly the find- evidence following: ings for instance commission, as treating angle, policy com- “Q. does the Well, it from a pany expect you people such this custo- to entertain as they say, Sterling, sir, A. do. Yes, at, mer Colorado? years? you Q. Have over a number of entertained them years? many Q. A. fifteen. least Yes, A. sir. How At hunting trip? you planned “Q. It A. When had plans planned, Thurs- made on the were the definite Monday. Probably day preceding. Thurs- third February? day. Q. [November] be the 28th would It along Q. Or A. 29th somewhere there. Yes, yes. Q. were time, A. How November? about that Just telephoned. arrangements Q. A. I arrived at? those you telephone A. from? Denver. Where did
[*] [*] [*] have the Platte “Q. what function does Acre And *8 yard Company? Valley He A. is the boss Lumber you any dealings buyer. usually Q. have did Well, soliciting paint? orders for men in of these with either gives usually Q. me On Acre the order. Yes, Mr. A. average? many occur, would that on an occasions how Practically eight year. A. Oh, Q. seven or times a every Practically every time?- A. time.
“Q. With whom did i\t you go hunting [*] [*] prior years Valley people? there I hunted A. have years, with Horace for ten or fifteen Acre.” Horace conclusively The record that claimant’s establishes employer approved encouraged type of enter- indulged period many tainment over a years promoting good company, will of the and it appears handling further that the conduct Company the account of the Platte had greatly employer. increased the business of his
Mr. Chief Justice Stone concurs this dissent. 16,750.
No. Lowery. et Mauldin al. (255 976) [2d] P. Rehearing April 20,
Decided March 1953. denied 1953.