Opinion
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for petitioners-appellants.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondents-appellees, Industrial Commission of Colorado.
PIERCE, Judge.
Julian N. Gallegos, service manager for Bob Hagestad Porsche Audi, Inc., drove a customer's car home overnight for the purpose of road-testing it under actual traffic conditions. This was normal procedure when nothing could be found to be wrong with the car while it was in the shop. That evening, Gallegos and his wife used the vehicle to go out to dinner to celebrate Mrs. Gallegos' birthday, and thereafter, to some friends' home. After leaving the friends' home at approximately 11:30 p.m., claimant was involved in an accident.
As a result of injuries received in this accident, Gallegos filed a claim for workmen's compensation. The Industrial Commission found that the accident was in the course of the claimant's employment and awarded him compensation. The employer appeals. We affirm.
The sole issue brought before us is whether or not claimant was in the course of his employment at the time of the accident which resulted in the injuries that were the basis of his award.
It is not denied that the road-testing of this vehicle was a duty which was within the scope of claimant's employment, and that a causal connection may be found between the injuries and the driving of the automobile. Pat's Power Tongs v. Miller, 172 Colo. 541, 474 P.2d 613; Claimants of Bennett v. Durango furniture Mart, 136 Colo. 529, 319 P.2d 494.
The employer argues that the primary purpose of this particular trip was to celebrate claimant's wife's birthday, and that were it not for the birthday party, the trip would probably not have been taken. From the facts in this case, however, the only tenable conclusion is that whenever the claimant was using this particular vehicle it was of benefit to his employer. The dual purpose of this trip will not defeat his claim. As stated in Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2:
'As to the 'dual purpose' doctrine asserted in Argument No. 1, Supra, the rule is stated in 99 C.J.S. Workmen's Compensation s 221, as follows:
'An injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable, for when some advantage to the employer results from the employee's conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Accordingly, an injury resulting from such an act arises out of, and in the course of, the employment; and this rule is applicable, even though the advantage to the employer is slight."
Order affirmed.
SILVERSTEIN and COYTE, JJ., concur.