General Plant Protection Corp. v. Industrial Commission

361 P.2d 138, 146 Colo. 191, 1961 Colo. LEXIS 588

• Court: Supreme Court of Colorado
• Decided: April 10, 1961
• Docket: No. 19,280
• Status: Published

Opinions

Mr. Justice Sutton

delivered the opinion of the Court.

Plaintiffs in error by writ of error seek to have set aside an award made by the Industrial Commission awarding compensation to the claimant, Robert Joseph Hupf, for injuries received in an automobile accident which occurred in the State of California on December 22, 1957. An order of a Referee of the Commission granting compensation was affirmed by the Commission and the award of the Commission was in turn affirmed by the District Court.

The facts of the case are that the employer, The General Plant Protection Corporation, operated its business in Colorado and elsewhere. Hupf s employment in Colorado having been terminated, he was given travel money to seek employment with a related partnership of the same name engaged in a like service at Edwards Air Force Base near Lancaster, California. For the purpose of this opinion we shall assume that the referee was warranted in concluding that Hupf was an employee of the corporate respondent at the time he was injured.

There is no substantial variance in the evidence which disclosed that Hupf and two others left Colorado by automobile on December 20, 1957, with instructions to contact the district manager of the partnership in California so as to be able to report for work on Monday morning, December 23, 1957. The trip was made without incident and Hupf and the two others (Stimac and Yost) arrived at Lancaster, California, just after noon on December 22nd.

The evidence further disclosed that on arrival an attempt was made by the transferees to contact the district manager of the California operation, which being unsuccessful, arrangements were made to meet him later in the evening. After they had finished lunch the men determined to “look the town over” and were so engaged for approximately three hours when Stimac, the owner of the car in which they were all then riding, wanted to have his car greased and checked after the long trip from Colorado. The vehicle was left at a service station and the three transferred to a second car which also had been used on the trip to California. It was then about 6:00 p.m. At about 6:30 p.m. on a highway about a mile or more south of Lancaster this car was involved in an accident and Hupf was injured. Yost, the driver of the vehicle at the time of the accident, testified that the three were “killing time” and were not looking for the district manager when the accident occurred.

For a solution of the problem presented we need only consider one of plaintiffs’ grounds urged for reversal. It is that Hupf’s injury did not arise out of and in the course of his employment.

Here the actions of claimant Hupf, as above related, can best be described in the aptly descriptive phrase of “a frolic of his own” at the time of the accident. He was “looking the town over” or at best still “killing time” and had strayed far from any necessary or incidental pursuits required of him as an employee. To be eligible for statutory benefits it was necessary for claimant to show that at the time of the injury he was doing something at least incidental to his employment, such as going to or from meals or lodging, as in Alexander v. Industrial Commission (1957), 136 Colo. 486, 319 P. (2d) 1074, and Lyttle v. State Fund (1958), 137 Colo. 213, 322 P. (2d) 1049. From the evidence in this record it is clear that his original employment with General Plant had been terminated and its interest extended no further than to accommodate and assist him in procuring employment elsewhere. Even assuming the relationship of employer and employee had not ceased to exist, claimant was not engaged in any activity relating to or incident to his employment at the time of his injury.

The judgment is reversed and the cause remanded with directions to dismiss the claim.

Mr. Justice Frantz dissents.