Opinion
Jan. 29, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1209
Robert S. Ferguson, William J. Baum, Francis L. Bury, Denver, for petitioners.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado.
ENOCH, Judge.
Petitioner Rainbo Bread Company (employer) and State Compensation Insurance Fund (insurer) seek review of an order of the Industrial Commission granting a 50% Award to the claimants, dependents of the decedent David E. Smith. We affirm.
There is no conflict in the evidence. The dispute arises out of the interpretation and the inferences drawn from the evidence. Smith was employed as a driver-salesman for Rainbo and his duties were to deliver bakery products and to contact prospective customers. His daily routine was to drive his own car from his home, just outside of Sterling, Colorado, to the Rainbo location in Sterling where he would pick up a Rainbo truck and load it with bakery products. He would then drive the company truck to Brush and Fort Morgan, Colorado, making deliveries at both locations. Once or twice a week he made additional deliveries in Hillrose and then would return to Sterling either directly from Hillrose or by driving back through Brush. He normally returned to his employer's bakery in Sterling prior to 7:00 p.m. to check his daily receipts and unload the truck before proceeding to his home. There is some evidence that Smith occasionally contacted prospective customers on his route and in that event arrived home later than his usual hour.
On November 8, 1971, Smith followed his usual routine and made deliveries in Brush, Fort Morgan and Hillrose. His last known stop was at a customer's store in Hillrose between 3:30 and 5:00 p.m. At approximately 9:00 or 10:00 p.m. that night he telephoned his wife informing her that he was calling from Brush and that he was with a customer. Nothing more is known of his whereabouts or his activities until approximately 2:30 the following morning when he was killed after his truck left the highway and struck a concrete embankment four miles from Sterling. At the time of the accident Smith was traveling in an easterly direction on the main highway toward Sterling. A blood alcohol test made after the accident established that Smith was intoxicated at the time of his death.
Petitioners contend that there is no evidence corncerning the direction of travel at the time of the accident. However, the employer's office records introduced into evidence by Rainbo state that Smith was going in an easterly direction toward Sterling at the time of the accident.
The Commission found that Smith had deviated from the scope of his employment for as long as 10 hours. However, since at the time of the accident he was operating the company truck at the location which would have taken him from his last known business stop to his employer's location in Sterling, the Commission further found that when he was fatally injured he had returned to the course of his employment. Accordingly, workmen's compensation death benefits were granted claimants but, because the Commission concluded that the accidental death was a result of Smith's intoxication, the award was reduced by 50%.
Petitioners contend that claimants failed to sustain their burden of proof and that the Commission erred in concluding that Smith had returned to the scope of his employment at the time of the accident. We do not agree.
Petitioners correctly assert that claimants had the burden of proving that decedent was within the scope of his employment when the accident occurred. Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858; Industrial Commission v. Havens, 136 Colo. 111, 314 P.2d 698. The issue in this case is whether circumstantial evidence is sufficient to establish a claim.
The record contains very little direct evidence relating to two crucial issues in this case: (1) whether decedent left the scope of employment and (2) assuming that he did so deviate, whether he re-entered the scope of employment. Although petitioners accept the Commission's conclusion, based on circumstantial evidence, that decedent left the scope of employment, they contend that direct evidence is required to establish Smith's re-entry into the protected zone. We do not agree. The Commission is entitled to consider circumstantial evidence and to draw reasonable inferences therefrom.
The case of Mohawk Rubber Co. v. Cribbs, 165 Colo. 526, 440 P.2d 785, is quite similar to the case at hand, and we find it dispositive of the issues raised by petitioners. In Mohawk, an employee on travel status had called his wife from out of town stating that he was with customers. After an unexplained lapse of time he died in a one-car accident caused by his intoxication. In affirming an award of benefits, the court stated:
'The important point is that he was killed in his car while alone at an intersection ten blocks from his home and in the direction which indicated he was returning home. If not direct evidence, it was reasonable evidence from which the inference could be drawn that he was on his way home. If the deceased was on his way home at the time of his death he was still within his course of employment even if there had been a deviation from such course of employment earlier in the evening.'
There is evidence in the record to support the findings and conclusion of the Commission that Smith was killed in the course of his employment. Therefore, these findings and conclusion are binding on this court. Mohawk Rubber Co. v. Cribbs, Supra.
Order affirmed.
PIERCE and RULAND, JJ., concur.