Opinion
Oct. 27, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Franklin C. Douglas, John A. Kintzele, Denver, for plaintiffs in error.
Wormwood, Wolvington, Renner & Dosh, Richard H. Cairns, Charles M. Dosh, Denver, for defendants in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The parties are before us in the same positions as they held at trial. The plaintiffs, who are husband and wife, sought damages arising from injuries suffered by Eugene Beyers in a one-car accident while he was riding with the defendant Donald Dean Roll. Plaintiffs have conceded that a derivative damage claim of the plaintiff Constance Beyers and the imputed liability of the defendant Michiko Roll are no longer issues in this appeal, and these persons are now only nominal parties.
The deposition of Eugene Beyers taken in this case established without dispute that at the time of the accident Eugene Beyers and Donald Roll were both engaged by the same company to perform work on its behalf, and that they were then en route to Security, Colorado, in a truck owned by Roll and his wife to make an estimate of materials needed for work to be performed for that company. No one disputes that after the accident Beyers filed a claim under the State of Colorado's Workmen's Compensation Act, attended a hearing on his claim held by the Industrial Commission, and thereafter received compensation payments pursuant to the Workmen's Compensation Act.
The trial court, acting on a motion for summary judgment by the defendants, entered its order dismissing plaintiffs' complaint on the grounds that any action by the plaintiffs was barred by the Workmen's Compensation Act. Plaintiffs have appealed from that judgment.
It is our opinion that the judgment of the trial court and its interpretation of the governing provisions of our Workmen's Compensation Act were correct.
The provisions of C.R.S.1963, 81--13--8(1) grant an injured employee the elective right to take compensation under the Act or to pursue his remedy against another Not in the same employ whose negligence or wrong causes his injury. This wording expressly limits the injured employee's remedy to that provided by the Act where the other person is in the same employ as the injured employee. In our opinion the effect of the Workmen's Compensation Act, as to employees covered by that Act, is to bar all suits by one employee against a co-employee for injuries sustained within the course of employment. See Varsity Amusement Co. v. Butters, 155 Colo. 330, 394 P.2d 603; Hartford Accident and Indemnity Co. v. Clifton, 117 Colo. 547, 190 P.2d 909; and Hamblen v. Santa Fe Trail Transportation Co., D.C., 101 F.Supp. 799.
Judgment is affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.