239 P. 869 | Colo. | 1925
UPON the hearing of the claim of the widow and minor children of Allen B. Comstock, deceased, by the Industrial Commission, the findings of fact were for the claimants and compensation was awarded to them for Comstock's death which occurred while he was in the employment of Bivens and Nelson, a copartnership. Upon the application of the employers the case was certified by the commission to the district court of Montrose county, which held the commission's findings of fact and the judgment thereon erroneous and thereupon ordered the same set aside. A review of that order of the district court by the claimants is the object of this writ.
Bivens and Nelson were operating a stage route in southwestern Colorado and in connection therewith carried the mails of the United States government under a star route contract. They employed Comstock to carry the mails over that portion of the star route from Naturita to Paradox and to post offices between these two towns. By the terms of the contract of hiring, Comstock was to furnish his own services and an auto truck as a vehicle for carrying mails and his fixed compensation was $225 per month. Additional compensation for carrying parcel post mail was allowed him, the amount of which depended upon the amount of packages he carried. Comstock was permitted by his employers to carry passengers and freight on his truck and his compensation was such as he arranged for with the passengers and shippers. With this *109 feature of the contract Bivens and Nelson had no concern. When Comstock began the work of carrying the mails under this employment, he carried a revolver which he afterwards exchanged for a rifle. On his last trip from Naturita to Paradox, after Comstock reached the post-office at the latter place and had delivered the mail to the postmistress, and after receipting for a parcel post package which he was to deliver to some consignee apparently on the next morning on his trip from Paradox to Naturita, he drove his truck from in front of the post office for a short distance along the public highway and stopped in front of his own home and apparently while taking his rifle out of the truck in some manner not disclosed by the evidence, there being no eye witnesses, the weapon was discharged and Comstock died in a few minutes as the result of the wound. The Industrial Commission found from the evidence that Comstock was one of four or more employees of the employers engaged in like service and that he was killed in the line of his employment, that the accident arose out of and in the course of his employment and that the fatal shot was not intentionally self-inflicted.
The employers contend that the evidence is conclusive that neither they nor their employee are subject to the provisions of our Workmen's Compensation Act and that the accident did not arise out of or in the course of Comstock's employment. The district court, as shown by its opinion in the record, held that there was no evidence at all before the commission to sustain its findings that Comstock at the time of the accident was serving his employers, but that in driving from the post office to his home after having delivered the mail he was merely going from the place of his work on his own business and after his service to his employers had ended. Apparently the district court conceded or assumed that both the employers and the employee were subject to the provisions of the act and rested its decision solely upon the proposition above stated. *110
1. In Industrial Commission v. Anderson,
It is argued, however, that Comstock was not required either by regulation of the post office department or by his employers to carry this rifle; that his work could have been done without it and that it was his own carelessness that caused his death. Even if we assume that, in such circumstances, this would ordinarily defeat a recovery, the testimony here is that it was and is the custom for mail carriers in this desolate and thinly populated community to carry some weapon as a precautionary measure for their own protection and to safeguard the mails. It is true that the post office department did not require this, though it usually granted permission when requests were made therefor. An employee in selecting the means and adopting the method for doing his employer's work is allowed some latitude and in view of the testimony that carrying weapons was a general custom of mail carriers in this region and that acts of lawlessness had been committed in this vicinity and that the employers knew that Comstock was carrying a rifle on his trips and made no objection, we hold that it was a reasonable precaution for Comstock to take this weapon with him on his route in carrying the mails. But the employers urge that Comstock did not carry the weapon to protect his person or to safeguard the mails but to kill wild game on his travels. There is testimony that the deceased so stated in his lifetime. Such may have been one object. The district court said that this testimony for the employers, like that of a similar nature for the claimants that the weapon was a precautionary and legitimate measure, was purely hearsay and should be disregarded. Probably that would be so *113
in a trial in a common law action but under the Workmen's Compensation Act strict rules of evidence applicable to such actions are not always enforced. Be that as it may, neither party objected to this hearsay testimony nor did either move to strike. By their conduct each party waived objection to hearsay evidence of his adversary and permitted the same to be considered by the Commission. Both are precluded now from assigning error upon its admission. Besides, and this is controlling, the courts are forbidden by the statute to pass upon objections to admission of testimony. Zook v. Industrial Commission,
It is further contended by the employers that it is just as reasonable to hold that Comstock's drive from the post office to his own home was but a part of his trip to the home of the consignee of the parcel post package for which he had given a receipt to the postmistress, and which was not, as the employers say, within the terms of employment, as that he was taking his car to his garage for the night. However that may be, as Comstock's death precludes any testimony from him as to his object, it was for the Industrial Commission, and not for the courts, to draw its own inference and the commission reached its conclusion that on this drive Comstock was engaged in serving his employers by putting away for the night the facility for performing the work which the contract required him to utilize.
2. Though the district court seems not to have rested its decision upon the proposition, counsel for the employers here in a vigorous and plausible argument contend that neither the employers nor the employee come within the provisions of the Workmen's Compensation Act. First, they say that one who holds a contract with the United States for carrying its mails, and all of his servants or employees, are engaged in the performance of a public function and that the employer holding such a contract cannot be held responsible for the negligence of his employee who actually carries the mail for any *114
loss or injury sustained by third parties at the carrier's hands. In the second place it is said that the mail carrier is not in a true sense an employee, or in the service, of the contractor but is in the service of the government itself and, therefore, the Workmen's Compensation Act does not apply. Perhaps the leading case cited in support of the contention is Conwell v. Voorhees,
The Federal Compensation Act does not include or apply to Bivens and Nelson, and Comstock. We see no reason why their relative rights and remedies are not those prescribed by our Workmen's Compensation law. In Rectorv. Cherry Valley Timber Co.,
We are clearly of the. opinion that upon neither of the foregoing grounds can the decision of the district court be sustained. It is, therefore, reversed and the cause remanded to that tribunal with instructions to set aside its judgment and in lieu thereof render a judgment dismissing the application of the employers and affirming the award of the Commission. *117