72 Colo. 573 | Colo. | 1923
delivered the opinion of the court.
Plaintiff in error the Industrial Commission is herein
February 28, 1922, deceased was employed by the corporation in its business of selling automobiles. Upon entering the garage of Oscar J. Harris on the evening of that day he was shot and killed by Harris under the assumption that he was a burglar who had entered the garage with felonious intent. The corporation was operating under the Workmen’s Compensation Act and plaintiff, claiming that her husband’s death was due to an accident arising out of and in the course of his employment, brought this action before the commission for compensation. Findings and award in her favor were, on appeal by the corporation and tíie Insurance Company, reversed by the district court, and to review that judgment the plaintiff and the commission prosecute this writ.
Three questions were raised by the pleadings: 1. Did the findings support the award? 2. Did the commission act without or in excess of its powers? 3. Was the evidence “sufficient?”.
It is apparent to us that the trial- court, mistaking its power and duty in the premises, disposed of this case upon the question of the sufficiency of the evidence. Its finding was:
“This cause having been heretofore submitted to the court and by the court taken under advisement upon its merits, and the court being now sufficiently advised in the premises, doth find the issues joined for the plaintiff and that the finding and award of the Industrial Commission be set aside.”
The judgment of the court should have disclosed its conclusion upon each specific question before it. It had no power to disturb findings of the commission entered on conflicting evidence. Industrial Commission v. Johnson, 66
There is evidence in the record before us to justify the following conclusions:
From October, 1921, to January, 1922, Harris and deceased were partners operating a garage at 1445 S. Broadway in the city of Denver. During that time and up to the date of the death of deceased these two men were on friendly and intimate terms. In January, 1922, deceased sold out to Harris and turned over to him the possession of the business and the keys of the building. Thereafter deceased sometimes called at the garage, and Harris visited at his home. Deceased began working for the corporation as a salesman immediately after the dissolution of his partnership with Harris. His duties were to demonstrate cars to prospective purchasers and aid in making sales. He supposed at the time of the dissolution of the partnership that he had turned over all the keys in his possession. Several persons kept cars in the Harris garage and carried keys to the door because the place was closed early in the evening and not open during the night. After Harris and deceased began business there in October, several keys were brought in by persons not known to have possession thereof. Two or three days preceding the shooting deceased and his minor son, searching a box at their home for a pencil clip, found one of these keys. Deceased hung it on a nail in his kitchen and left word with his wife to deliver it to Harris if the latter called in his absence. On February 25, 1922 (Saturday), the corporation had one prospective purchaser in Denver and another in Littleton. The corporation’s place of business was closed early in the evening and not open on Sundays. Deceased’s employer directed him to take a car home with him that evening that it might be accessible for demonstration to the Denver customer early Sunday morning and the Littleton prospect later in the day. Deceased acted accordingly. He reached his home in the city and had supper about 6:30 p. m. His own garage was
The commission found:
“On the evening of February 25, 1922 William John Lewis was employed as an automobile salesman by the employer above named (the corporation). On the evening of February 25, 1922 the decedent left his employer’s place of business with a demonstrator. After the decedent had finished with his supper he left his residence for the purpose of storing the demonstrator at 1445 S. Broadway, Denver, Colorado. The decedent was shot by Oscar J. Harris under the assumption that he was a burglar and was attempting to burglarize the Harris garage.
The evidence submitted herein indicates that the decedent was killed while performing duties arising out of and in the course of his employment, that is to say, he was shot while attempting to take care of his employer’s property. The finding therefore is that decedent’s death arose out of and in the course of his employment and that his*579 widow and minor son are entitled to maximum compensation as provided by law.”
These findings are severely criticized by counsel for defendants in error. It must be admitted that they are models of neither particularity nor lucidity. In our opinion however they contain every element essential to their validity and that they support the award is too clear for argument. It appears therefrom that the corporation had entrusted one of its automobiles to deceased. It was his duty under the terms of his employment to give it proper care for the night. While attempting to perform that duty by storing the car in the garage of one Harris the latter mistook deceased for a burglar and shot and killed him, hence the commission finds that deceased was shot while attempting to care for his employer’s property and that the cause of death was an accident arising out of and in the course of his employment.
The contention that the commission acted without or in excess of its powers is based upon the claim that, assuming the findings are sufficient to support the award, there is no evidence to support the findings. That contention, as set forth in the complaint and amplified in the argument, may be briefly summarized thus: 1. Deceased was attempting to commit a burglary. 2. He departed from his employment when he left the car and entered the Harris garage. 3. He went to the Harris garage for a purpose of his own, 1. e., to secure his tools. 4. He was not trying to store the car because he had driven past the garage and walked back to it. 5. He had no authority to enter the Harris garage. 6. It was not necessary for him to enter the garage in the course of his employment. 7. The car driven by him was not customarily stored in the Harris garage. 8. The commission’s decision of a disputed fact rests upon hearsay.
These contentions may be as briefly answered thus: 1, 2, 3 and 4 were questions of fact for the decision of the commission and their finding can not be disturbed. 5 and 7 were immaterial. 6 rested in the discretion of deceased
Counsel for defendants in error insist that the facts are uncontradicted hence this court should treat the facts appearing in evidence as findings and apply the law thereto. Prouse v. Industrial Commission, 69 Colo. 382, 194 Pac. 625. This is probably correct except as to one fact, i. e., deceased’s motive in going to the Harris garage and his purpose in entering it. All other material facts are undisputed and support the findings and award and this one has been resolved in favor of plaintiff by the commission.
The hazard, out of which arose the injury which caused the death of Lewis, was not common to the general public,. the injury would not have occurred but for his employment, and the act being performed by him was within the scope of his duties. He was doing the duty which he was employed to perform, hence received the injury “in the course of” the employment; a reasonable person familiar with the entire transaction on that evening would have contemplated the result as probable from the exposure occasioned by the nature of the employment, hence the injury “arose out of” the employment. Industrial Commission v. Anderson, 69 Colo. 147, 150, 169 Pac. 135 (L. R. A. 1918F, 885), citing In re McNicol, et al, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306.
There being no claim of fraud and the findings clearly supporting the award the district court had but one duty
The judgment is accordingly reversed with directions to the district court to enter judgment affirming the findings and award of the Industrial Commission.