American Fuel & Clay Products Co. v. Gilbert

• Court: Alabama Supreme Court
• Writing for the Court: FOSTER, J. PER CURIAM.
• Citation: American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540 (Ala. 1930)
• Decision Date: 16 January 1930
• Docket Number: 6 Div. 458.
• Parties: AMERICAN FUEL & CLAY PRODUCTS CO. v. GILBERT.

127 So. 540

221 Ala. 44

AMERICAN FUEL & CLAY PRODUCTS CO. v. GILBERT.

6 Div. 458.

Supreme Court of Alabama

January 16, 1930

Rehearing Granted April 3, 1930.

Certiorari to Circuit Court, Jefferson County; Roger Snyder, Judge.

Proceeding under the Workmen's Compensation Act by Vador Gilbert against the American Fuel & Clay Products Company to recover compensation on account of the death of her husband, an employee. From a judgment awarding compensation, the employer brings certiorari.

Reversed and remanded on rehearing.

Cabaniss Johnston, Cocke & Cabaniss and Gerry Cabaniss, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

FOSTER J.

Petitioner in this court, to whom we will refer as the employer, owned and operated a tipple at a railroad, in a valley with a hill on each side. The tipple was of wood construction, with composition roof. There was located upon the top of it a tin sign two feet high and eight feet long, held in place by two guy wires, on each side, with one end of each attached to the edge of the roof but not grounded. The decedent, an employee of petitioner, was engaged in the line of his duties immediately under the place where one of said wires was nailed to the roof. While so engaged lightning struck the guy wire, ran down the wire to the end, went through the roof where decedent was employed, struck decedent, and killed him. The court further found that the lightning was not attracted to the building by the tin sign, but the lightning would have struck the building even though the sign and wires had not been there, but being in the path of the lightning the wire conducted it to the end where it went through the roof; that the place and conditions were not necessarily dangerous in an electrical storm, and did not subject him to any risk from lightning other than an ordinary risk in a place of like kind or in a building of like kind in the same general vicinity that a building in this valley was less liable to be struck than one situated on level ground.

There was no bill of exceptions, and we must therefore take as well supported the facts found by the court. But the legal conclusion from these facts is subject to review by this court.

The employer in this case insists that though the employee was killed by reason of an accident which occurred while he was in "the course of his employment," it did not "arise out of it," within the meaning of section 7534, Code. The clause there stated refers to "distinct conceptions and their concurrent existence is essential to invoke" the benefits of the Workmen's Compensation Law. But "overwrought refinements in administration should be avoided, since that process may conduce to the embarrassment, if not the defeat, of the beneficent purposes of remedial acts of this character." Ex parte L. & N. R Co., 208 Ala. 216, 94 So. 289, 292.

This court has given such liberal interpretation to the act in Ex parte Rosengrant, 213 Ala. 203, 104 So. 409, 412, and Boris Const. Co. v. Haywood, 214 Ala. 162, 106 So. 799. Counsel for the employer in the instant case insist that in those cases, the court ignored the requirement that the accident shall "arise out of" the employment as well as be in the course of it. But we do not so interpret them. In the former an employee was said to be peculiarly exposed "to hazards from loafing and working crews on these [other] boats, to which he would not otherwise have been subjected." Also that "by reason of his employment he was exposed to this hazard, which was a natural incident of his work at that place, and which he would not probably have otherwise encountered." The Boris Const. Co. Case was said by the court to be the same in principle as the Rosengrant Case. This court has carried the principle of those cases to another state of facts in Dean v. Stockham Pipe & Fittings Co., 123 So. 225. The question in them was, conceding that the employee was engaged in the course of his employment, did the accident "arise out of it?" The answer was said to depend upon a correct application of the principle that the hazard of the accident "was peculiar to the employment as a contributing cause," and flowed from that source as a rational consequence. It excludes therefore an accident "which comes from a hazard to which the workmen would have been equally exposed apart from the employment."

The United States Supreme Court quotes with apparent approval the following from Anderson v. Adamson, 50 Scot. L. R. 855, as a correct statement of this rule: "If it is the normal risk merely which causes the accident, the answer must be that the accident did not arise out of the employment. But if the position which the workman must necessarily occupy in connection with his work results in excessive exposure to the common risk *** or if the continuity or exceptional amount of exposure aggravates the common risk *** then it is open to conclude that the accident did not arise out of the common risk, but out of the employment." Continuing the court says, "same doctrine has been declared *** by many of the state courts" (citing Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 A. 594; Empire, etc., Ins. Co. v. Purcell, 76 Ind.App. 551, 132 N.E. 664; Judson Mfg. Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1, and others). Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 155, 68 L.Ed. 366, 30 A. L. R. 532.

The courts have applied the principle to accidents to employees while engaged in the service of their employment when they were caused by lightning. 1 Honnold on Workmen's Compensation, p. 428, and the cases to which we will later refer. The principle is always the same, and the same result always follows from a proper answer to the inquiry of whether "the work or the method of doing the work exposes the employee to the forces of nature to a greater extent than he would be if not so employed." 1 Honnold, supra.

Referring now to some of the cases, we find it held that if an employee is out in the open, where there is no peculiar attraction to lightning, and is injured by lightning, such an accident is not a hazard peculiar to his employment. Kelly v. Kerry County Council, 1 B. W. C. C. 194; Hoenig v Industrial Commission, 159...