Opinion
No. 16,997.
Decided March 2, 1953. Rehearing denied April 13, 1953.
A proceeding under the Workmen's Compensation Act. Judgment for claimant.
Reversed.
1. WORKMEN'S COMPENSATION — Employment — Proof. In a workmen's compensation case, the burden of proving "whether the accident originated in a risk peculiar to the employment," is upon the claimant.
2. Accidents — Course of Employment — Proof. In a workmen's compensation case, it is held that claimant must show by a preponderance of the evidence that he was performing work connected with his job.
3. Awards — Evidence. In a workmen's compensation case. "The award must be based upon the facts of the case under consideration, and not on what had happened on other occasions."
4. Course of Employment. "To come within the classification of 'course of conduct,' it must be shown that such conduct is such a continuous practice as to constitute a regular course of conduct. An occasional instance * * * does not establish such a custom."
Error to the District Court of the City and County of Denver, Hon. W. A. Black, Judge.
Mr. JOHN P. BECK, for plaintiffs in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. H. LAWRENCE HINKLEY, Deputy, Mr. PETER L. DYE, Assistant, for defendant in error Industrial Commission.
Mr. GILBERT L. McDONOUGH, for defendant in error Roberts.
THIS cause is presented here for review of a judgment of the district court affirming an award of the Industrial Commission made to claimant Roberts under the Workmen's Compensation Act. The sole question for determination is whether or not the accident, resulting in the injury to claimant arose out of and in the course of his employment. He lost an eye as the result of being hit by a stray gunshot while pheasant hunting with some employees of a business customers. In other words did this hunting trip have a direct and causal connection with his employment simply because such a claim is made?
We will herein refer to the surety company plaintiff in error, as insurer; to the other parties as employer and claimant; and the Industrial Commission, one of the defendants in error will be designated as the commission.
The referee's finding, adopted by the commission, was to the effect that claimant's injury arose out of and in the course of his employment, and the commission made an award requiring respondents to pay compensation to claimant at the rate of $28.00 per week on December 11, 1951 through January 9, 1952 on account of temporary total disability, and thereafter at the same rate for a period of 139 weeks for permanent partial disability, and for the payment of the necessary medical and physician and hospital expenses incurred within six months from the date of the accident not to exceed $1,000.00. In due course in a judicial proceeding, the district court affirmed the award of the commission and its judgment is before us in this review.
Claimant is a resident of Denver and is employed as a paint salesman in Colorado and Wyoming with the duties of promoting the sale of paints manufactured by his employer; to establish new dealers; and demonstrate newly developed techniques to painters. He was employed on salary and commission with an allowance for expenses for entertainment of dealers and painters to promote good will. On December 1, 1951, claimant went to Sterling, Colorado and the pheasant hunting season being open he hunted alone on that day and again on Sunday with a friend. On the next day, Monday, December 3, he called on the Platte Valley Lumber Company at Sterling and made an inventory of the merchandise in its paint store in the forenoon; had a quick lunch, and in the afternoon went pheasant hunting about twenty-five miles from Sterling with a yard boss and a truck driver for the same company. About two o'clock in the afternoon while hunting with the yard boss and a truck driver in a field without permission of the owner, claimant was hit in the right eye by a shot from the gun of the truck driver while the latter was shooting at a pheasant. This injury terminated the hunting expedition and claimant returned to Denver, where, after medical attention, the eye was removed.
There seems to be no dispute about the facts, and the posed question is, does the evidence support the finding and award of the commission and its affirmance, to the effect that at the time of the accident claimant was "performing service arising out of and in the course of his employment," and does the evidence support the award in that the injury was proximately caused by an accident within the course of his employment?
[1, 2] The first approach to the precise question is to determine whether the accident originated in a risk peculiar to the employment. The burden of proving this question was upon claimant, not by attempting to establish what might have been a custom acquiesced in by his employer on other occasions, but by the facts of the present situation. The preponderance of the evidence must show that claimant was performing work connected with his job as hereinbefore outlined. It unquestionably appears that claimant was attracted to the area where he could engage in pheasant hunting for his own pleasure, because, when arriving in the area, he hunted one day alone; the next day, with a friend not at all connected with the activities of his business as a customer; and the third day, when the accident happened he was not with the heads of the Lumber Company, but was with a yard boss and a truck driver. Even if it could be said that he was entertaining the parties with him on the hunt, it is undisputed that he provided nothing for their entertainment, no transportation no guns, no ammunition, no hunting license, and did not provided a place to hunt, not even procuring the permission of the landowner where the accident happened and made no expenditures whatever for the trip. He provided his own lunch and his hunting companions did likewise. There is nothing in the evidence to show that he was directed to provide a hunting trip for these particular individuals, or to participate in it, and in fact, his superiors knew nothing of his arrangement which seemed to be one of his own selection and largely for his own pleasure. The circumstances indicate that claimant's interest in the hunting trip was to have companions and not their entertainment. We do not believe that the elasticity of the Workmen's Compensation Act permits it to be stretched to cover the situation before us where virtually the only supporting testimony on the question of whether claimant was injured while in the course of his employment is his own statement to that effect. Any acquiescence in claimant's former activities of this sort by his employer, according to a letter introduced in evidence, was approval of claimant's entertainment of good customers or good prospects and did not include the entertainment of subordinate employees such as was the case here.
Claimant exposed himself to a risk common to all who are hunting in a group and when he knew of this hazard as he testified, he unnecessarily increased the risk of injury and cannot recover therefor. He was exposed to this hazard on the day before and it was a hazard to which he would have been "equally exposed apart from the employment." Industrial Commission v. Anderson, 69 Colo. 147, 169 Pac. 135. We see no obligation on the part of claimant to be at the place where he was injured or engaged in the thing he was doing at the time.
[3, 4] It is apparent that the commission in its attempt to find a basis for an award was controlled largely by the fact that claimant had at other times entertained customers throughout his territory for which the employer had paid the expense; and further, found that for years claimant had hunted with the owners and employees of the Platte Valley Lumber Company with the employer's knowledge and it had paid for such trips. This does not provide a basis for an award in the present case, because the award must be based upon the facts of the case under consideration, and not on what had happened on other occasions. We find nothing in the evidence that discloses the assumption of the commission to the effect that claimant had ever hunted with the owners of the lumber company nor with its management. To come within the classification of "course of conduct," it must be shown that such conduct is such a continuous practice as to constitute a regular course of conduct. An occasional instance, such as is the case before us, does not establish such a custom be cause the proof of such a custom must be clear and convincing as to duration. Alden Sign Co. v. Roblee, 121 Colo. 432, 217 P.2d 867. The conclusions of the commission are not based on positive fact findings and the finding that the accident arose out of and in the course of the employment is therefore a conclusion not supported by the evidence.
For the reasons herein indicated, the judgment is reversed and the cause remanded to the district court with directions to return the case to the Industrial Commission with instructions that it vacate its award to claimant and dismiss the claim.
MR. CHIEF JUSTICE STONE and MR. JUSTICE MOORE dissent.