Bergren v. S. E. Gustafson Const. Co.

• Decision Date: 04 February 1955
• Docket Number: No. 9452,9452
• Citation: 75 S.D. 497,68 N.W.2d 477
• Parties: Geraldine BERGREN, Claimant and Respondent, v. S. E. GUSTAFSON CONSTRUCTION COMPANY, Employer, and Travelers Insurance Company, Insurer, Appellants.
• Court: South Dakota Supreme Court

Page 477

68 N.W.2d 477

75 S.D. 497

Geraldine BERGREN, Claimant and Respondent, v. S. E. GUSTAFSON CONSTRUCTION COMPANY, Employer, and Travelers Insurance Company, Insurer, Appellants.

No. 9452.

Supreme Court of South Dakota.

Feb. 4, 1955.

Davenport, Evans, Hurwitz & Smith, and Robert C. Heege, Sioux Falls, for employer, insurer and appellants.

Boyce, Warren, Murphy & McDowell, Sioux Falls, for claimant and respondent.

SMITH, Judge.

Whether the death of the employee in the course of his employment, which resulted directly from lightning, is an injury arising out of his employment, is the question presented by this appeal in a workmen's compensation proceeding.

The principal finding from which the Industrial Commissioner concluded the injury was not compensable reads as follows:

'That on August 25, 1952, the said deceased husband of Claimant, while in the course of his employment, arrived at a highway construction job of the said S. E. Gustafson Construction Company located in Hutchinson County, and at the time of his arrival an electrical storm was in progress; that the deceased stepped from his car, climbed upon the road grade under construction, and while standing on the road grade, within a few feet of a metal and concrete bridge therein which was also under construction, was struck by a bolt of lightning which killed him instantly; that there was wet soil in the road grade under construction upon which he was standing, and there was also a considerable amount of at least equally wet soil to be found in an immediately adjacent draw which lay athwart the road under construction; that the road grade upon which the deceased stood was about six feet higher than any adjacent ground for a radius of two or three hundred feet and outside of such radius there was higher ground; that there was a steel caterpillar tractor standing in wet soil approximately fifty feet from the spot at which deceased was killed, which tractor weighed twenty tons and the top of which was level with the grade upon which the deceased was standing and constituted at least an equal lightning attraction to the spot in which deceased was killed; that generally the only increased hazard to which the deceased was exposed at the time he was struck by lightning was his own physical height, the ground contour, conditions and the elevations generally existing thereabouts constituting no more than typical conditions in which numerous members of the public find themselves at the time of an electrical storm. That in the nature of things some members of the public find themselves in better protected positions than other members of the public in an electrical storm, but that there is a range of hazard which is not special to any employment but is generally shared by members of the public, and the circumstances herein fall within this range and there was not herein a substantially increased hazard peculiar to the employment.'

The circuit court reviewed the record on appeal and concluded that the single inference reasonably to be drawn from the undisputed facts is that the employment exposed the employee to a greater risk or hazard from lightning than the general public, and hence that the injury arose from the employment and is compensable. The denial of award was therefore accordingly reversed and the Commissioner was directed to amend the findings and make a proper award of compensation to the claimant. The employer and its carrier have appealed to this court. We affirm the judgment of the circuit court.

The statute defines 'injury' or 'personal injury' as only injury by accident arising out of and in the course of the employment. SDC 64.0102(4). As we have indicated, our sole concern is whether the described injury did arise out of the employment. It is conceded that the injury was accidental and in the course of the employment.

A recognized purpose of the Workmen's Compensation Act, SDC 64.0101 et seq., is to transfer from the worker to the employer, and ultimately to the public, a greater portion of the economic loss due to industrial accidents and injuries. 58 Am.Jur., Workmen's Compensation, Sec. 2, p. 576. The act is remedial and should be liberally construed. Meyer v. Roettele, 64 S.D. 36, 264 N.W. 191; Wilhelm v. Narregang-Hart Co., 66 S.D. 155, 279 N.W. 549; and Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911.

The phrase 'arising out of * * * the employment' has been considered by this court. In Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913, 916, we quoted with approval from the Minnesota court in Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 297 N.W. 19, 21, as follows:

"It is significant that in defining compensable accident the workmen's compensation law makes no mention of cause or causation as such. Impliedly, it thereby rejects or at least modifies the standard of proximate causation determinative in tort legislation. Therefore, care must be exercised lest long judicial habit in tort cases allows judicial thought in compensation cases to be too much influenced by a discarded or modified factor of decision.

"It is apparent that the new standard 'arising out of and in the course of' employment does not require that the latter be the...