Miller v. Denver Post, Inc. , 137 Colo. 61 ( 1958 )

Mr. Justice Day

delivered the opinion of the Court.

This is a claim before the Industrial Commission under the Workmen’s Compensation Act. Plaintiff in error, a minor, was the claimant before the Commission and will be so designated. The district court affirmed the findings and award of the Commission denying claimant compensation. Claimant is here by writ of error seeking reversal.

Claimant was a newspaper carrier boy for The Denver Post. At the time of his injury he had folded his papers preparatory to departing to deliver the afternoon edition to his customers. By his claim before the Commission he sought: 1. To have the Commission ascertain that he was an employee of The Denver Post as defined by the Workmen’s Compensation Act, C.R.S. ’53, 81-2-7; and 2. That his injuries arose out of and in the course of his employment.

The Industrial Commission made no findings on point 1, and on point 2 it found that assuming, without deciding, that there was a relationship of employer and employee between claimant and The Denver Post, the injuries sustained by the claimant did not arise out of or in the course of any alleged employment.

The facts were that at the time the claimant was injured he was pursuing, down an alley and through vacant lots, other boys who had taken a radio aerial from his bicycle. The last boy in possession of the aerial ran across the alley from one vacant lot to another, and the claimant was in pursuit. In order to prevent the claimant from repossessing the aerial, the boy who had it was swinging it in an arc over his head, the swinging motion caused an end of the metal aerial to come loose and fly through the air striking the claimant, causing the injuries. From the above facts the Commission found, in a more detailed statement than is necessary to repeat here, that the claimant “stepped outside the scope of his employment and that the accident did not arise out of and in the course of his employment.” The Commission further found that the claimant failed to meet the burden of proof imposed upon the party asserting the claim to show that the injury was the proximate result of an accident arising out of and in the course of employment. Olson-Hall v. Industrial Commission, 71 Colo. 228, 205 Pac. 527. There were other findings that there was “no causal connection between the work performed by the claimant and the incident responsible for the injury.” And “that the radio aerial played no part in plaintiffs delivery of the paper or of the service to be rendered.”

The Commission, adopting the findings of the referee, held to the doctrine laid down in Rocky Mountain Fuel Company v. Kruzic, 94 Colo. 398, 30 P. (2d) 868, to the effect that a claimant must prove that the accident originated in a risk peculiar to the employment, and that to meet the tests set forth in the Workmen’s Compensation Act there must be a causal connection between the employment and the injury.

In studying that case we find this apt language:

“To ‘arise out of’ the employment, unmistakably means that the cause of the accident was at all times ‘in’ the employment. It could not come out of it, unless it was first in it.”

And further that: “* * * the test is whether or not there is a causal connection between the injury and the employment; that is, are they so connected that the injury naturally resulted from the employment. Industrial Com. v. Pueblo Co., 71 Colo. 424, 207 Pac. 479.”

Other cases supporting the findings of the Commission and the subsequent affirmation by the trial court are: McKnight v. Houck, 87 Colo. 234, 286 Pac. 279; Gates Rubber Company v. Industrial Commission, 112 Colo. 480, 150 P. (2d) 301.

Thus where the findings of the Commission are amply supported by the evidence and the law as here, they will not be disturbed by this Court on review.

The briefs of counsel in this case urge that we make a determination of the first point in claimant’s demand for compensation — that is whether claimant was, at the time of his injury, an employee of The Denver Post. The Industrial Commission made no findings in this respect. In view of our conclusion that the finding on one point is sufficient to deny a claim, no good purpose would be served by remanding the case to the Commission for a finding on the other point since it is not determinative of the case. It was stated in Metros v. Denver Coney Island, 110 Colo. 40, 129 P. (2d) 911, that to sustain an award of compensation the Commission is required to make a finding of all of the essential facts required by the statute, C.R.S. ’53, 81-13-2, i.e.: 1. That both employer and employee are subject to the provisions of the act; 2. That at the time of the accident the employee was performing services arising out of and in the course of his employment, and 3. That the injury was caused by an accident arising out of and in the course of the emplyoment. It was also stated, as the converse thereof, that “An award denying the compensation should follow a finding of the absence of one or more of such essential facts.” (Emphasis supplied.) Here one of the essential facts, to-wit, an injury resulting from an accident arising out of and in the course of the employment, was missing, and its absence compelled a denial of the claim. Findings on the remaining requirements of the statute, whether pro or con, would not alter the result. An analysis of the Workmen’s Compensation Act reveals that the ultimate issue to be determined in every case is whether or not the claimant is entitled to compensation.

The Commission is the only body or agency authorized to find the facts determinative of point 1. This court, on the other hand, is not a fact-finding body and can only affirm or reverse the judgment of the lower court or, if the circumstances require, order a remand to the Commission for further findings. If a finding on point 1 might alter the result so as to entitle claimant to compensation, we would be required to order a remand of the case to the Commission for further pro-" ceedings. However, a finding on the point either way would make no difference in the result, and not being necessary to a decision, would be pure dictum. While interesting as a legal problem, it would have no value as a precedent. “Every opinion must be read in the light of its own facts and it is decisive only of the matters involved.” People v. Texas Co., 85 Colo. 289, 275 Pac. 896.

The judgment of the lower court in affirming the Commission was predicated upon a finding that the claimant did not sustain his burden of proof as to one vital prerequisite to recover.

The judgment is affirmed.

Mr. Justice Sutton specially concurs.

Mr. Justice Frantz dissents.