Aetna Life Insurance v. Industrial Commission , 81 Colo. 233 ( 1927 )

Mr. Justice Denison

delivered the opinion of the court.

Laura C. Oakley was awarded compensation by the Industrial Commission for the death of her son, Lyle Oakley. The district court affirmed the award and the insurance carrier and the employer bring error.

The deceased was a farm hand and was sent by his employer to work for a day on a neighbor’s farm. "While returning by the most feasible route, with a team of horses, but without a wagon, crossing a high rocky hill near a wire fence, he and the horses were killed by lightening. He was so near the horses that one of them fell on him and he was so found.

The sole question for us is whether the death was one arising out of his employment. C. L. § 4389.

In Hassell I. W. Co. v. Industrial Commission, 70 Colo. 386, 201 Pac. 894 an award for death by lightning was sustained because the victim was working on a steel bridge over water, and it was said, - (page 390) that because of that the employment involved special risk, and so there was a causal relation between the employment and the death.

A majority of the court thinks that, since Oakley’s employment required him to be in a position where the lightning struck him, there was a causal relation between employment and accident, so that the latter may be said to arise out of the former and therfore the judgment should be affirmed. The writer, however, is of the opinion, in which the Chief Justice concurs, that the mere fact that duty calls the employee to the place where he is killed or injured, is not enough; yet recognizes that the precedents in this state and in the Supreme Court of the United States extend even beyond limits which would include the present case and so concurs in the result reached by the majority.

For analogous cases see Industrial Commission v. Pueblo Auto Co., 71 Colo. 425, 207 Pac. 479, 23 A. L. R. 348; Industrial Commission v. Hunter, 73 Colo. 226, and iState Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 Pac. 653.

Judgment affirmed.

Mr. Justice Adams dissents.