Western Casualty & Surety Co. v. Swort

Mr. Justice Knauss delivered the opinion of the Court. Bert L. Swort, defendant in error, admittedly an employee of plaintiff in error, A. D. Kenyon, doing business as A. D. Kenyon Machinery Company, was injured on September 11, 1954, and Swort filed his claim for' compensation for these injuries with the Industrial Commission of Colorado. Hearing thereon was had before a referee of the Commission, who made findings that claimant Swort was injured in an accident arising out of and while in the course of his employment by Kenyon, and ordered compensation and medical benefits. [423] On petition for review the commission vacated the order of the referee and. denied Swort’s- claim. Following claimant’s petition for review of this order denying the claim, pursuant to statute, Swort filed an action in the Denver district court to set aside the order of the commission. In that action his employer, the industrial commission, and Western Casualty and Surety Company were made defendants. Western Casualty and Surety Company is the insurance carrier of Kenyon. Answers were filed by defendants, and the entire record of the industrial commission in the case was submitted to the trial court. Upon hearing and review, the district court found the issues in favor of Swort and entered judgment in his favor, and directed the reinstatement of the order of the referee awarding compensation to claimant. The defendants in the district court action bring the case here on writ of error. It is not disputed that Swort was employed by Kenyon, who was subject to the provisions of the Workmen’s Compensation Act. It appears, without contradiction, that he was driving a truck belonging to Kenyon for the purpose of delivering certain machinery and equipment to Missouri Gulch, and on the return trip one Jack Carlson, operating another conveyance, ran into the rear of the truck in which claimant was riding, throwing Swort out of the truck and resulting in the injuries for which he claimed compensation. Accompanying Swort on this trip was one Brannon, and it was admitted that Brannon drove the truck on the return trip. Carlson was killed as a result of the collision. It was also admitted that Brannon was in no sense responsible for the accident. It appears that before the truck left to deliver the machinery and equipment, Mr. Kenyon asked Brannon if he would drive the truck, to which he replied in the affirmative. Kenyon then asked: “Do you have an operator’s license” and Brannon said: “No, Swort does.” Kenyon then asked Swort if he had an operator’s license, [424] to which Swort replied that he did. “He then asked me [Swort] if I would drive for one day, and I told him I would, so I drove the truck to Missouri Gulch and we unloaded the equipment and came back and I hadn’t ate that day, and I asked Mr. Brannon if he would relieve me as far as the city limits, and that is how he happened to be driving when the man hit us.” It is further admitted that Kenyon directed the claimant Swort to bring the truck back and park it in the Kenyon yard. Claimant received compensation at the rate of $1.50 per hour for his services. We are here called upon to determine whether the industrial commission was correct in holding that when Swort relinquished “the wheel [of the truck] to a man possessing no driver’s license he stepped from the course of his employment, and that, therefore, the injury did not arise out of his employment.” Stated otherwise, the issue is whether Swort, under this record was performing service arising out of and in the course of his employment at the time of the accident. The trial court correctly determined this question. Where the decision of the industrial commission is based upon improper application of the law, the district court is at liberty to set aside the award of the commission. Meyer v. Lakewood Country Club, et al., 122 Colo. 110, 220 P. (2d) 371. In the instant case the commission incorrectly applied the law to an uncontroverted set of facts. We hold that when Swort, the employee of Kenyon, allowed Brannon (not an employee) to drive the truck, he, Swort, did not step from the course of his employment, but was at the time of the accident in the course of his employment. M. & K. Corporation, et al. v. Industrial Commission, et al., 112 Utah 488, 189 P. (2d) 132; Employers’ Liability Assur. Corp., et al. v. Industrial Accident Commission, et al., 36 Cal. App. 568, 177 Pac. 171; Byam v. Inter-State Iron Co.. 190 Minn. [425] 132, 250 N.W. 812; Matzek v. United Storage & Trucking Co., 122 Pa. Sup. 146, 186 Atl. 193. We need not go into detail concerning the factual situation in each of these cases. A careful reading of these decisions when considered as a group announcing the prevailing rule of law, demonstrates beyond peradventure that all of the facts in the instant case are covered. In each of these cases the employee allowed a non-employee to drive a truck or automobile and the employee was injured or killed while the employer’s vehicle was being thus driven. In each of these cases, in one way or another, the employer contended that the employee left the course of employment when he permitted the non-employee to drive. This contention was not upheld. Whiteside v. Harvey, 124 Colo. 561, 239 P. (2d) 989, presented a situation somewhat akin to the facts in the instant case. There the employee was directed by his employer to take a truck from Denver to Greeley to get a load of potatoes. The employee allowed his father to accompany him on the trip. Somewhere between Denver and Brighton the employee became sleepy and requested his father to take over the wheel of the truck. The father was not an employee and was unfamiliar with the operation of the truck. The son fell asleep and the father negligently propelled the truck into plaintiff’s building. Suit was brought by the building owner against the truck owner, on the theory that the father’s negligence was imputed to the truck owner. Liability of the truck owner was affirmed in this court. We said at p. 564: “The father, as driver, here became an instrumentality in the hands of his son, and, further, the truck here involved was on a mission in the furtherance of defendant’s business.” We conclude that Swort, in the instant case, was in the course of his employment at the time of the accident, which was not attributable to any negligence on the part of Swort or Brannon. [426] We, therefore, must also conclude that the accident arose out of his employment. Industrial Commission et al. v. Pueblo Auto. Co. et al., 71 Colo. 424, 207 Pac. 479; Aetna Life Ins. Co. v. Industrial Commission, 81 Colo. 233, 254 Pac. 995. Perceiving no error in the record, the judgment of the trial court is affirmed. Mr. Justice Holland and Mr. Justice Hall dissent.