Buhrkuhl v. F. T. O'Dell Const. Co.

• Citation: 95 S.W.2d 843,232 Mo.App. 967
• Parties: VELMA BUHRKUHL, DEPENDENT OF THOMAS BUHRKUHL, DECEASED EMPLOYEE, APPELLANT, v. F. T. O'DELL CONSTRUCTION COMPANY, EMPLOYER, AND THE FIDELITY & CASUALTY COMPANY OF NEW YORK, INSURER, RESPONDENTS
• Decision Date: 07 July 1936
• Court: Court of Appeal of Missouri (US)

95 S.W.2d 843

232 Mo.App. 967

VELMA BUHRKUHL, DEPENDENT OF THOMAS BUHRKUHL, DECEASED EMPLOYEE, APPELLANT, v. F. T. O'DELL CONSTRUCTION COMPANY, EMPLOYER, AND THE FIDELITY & CASUALTY COMPANY OF NEW YORK, INSURER, RESPONDENTS

Court of Appeals of Missouri, St. Louis

July 7, 1936

Respondents' Motion for Rehearing Overruled July 20 1936.

Writ of Certiorari Quashed by the Supreme Court, May 5, 1937.

Appeal from the Circuit Court of Ralls County.--Hon. Edmund L Alford, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

George A. Hodgman and Luke & Cunliff for respondents.

(1) Woods v. Amer. Coal & Ice Company, 25 S.W.2d 144; Johnson v. Reed, 32 S.W.2d 107; Kane v. St. L. Refrig. Transit Co., 83 S.W.2d 593; Allison v. Eyermann Const. Co., 43 S.W.2d 1063. (2) Noto v. Hemp & Co., 83 S.W.2d 136 (and cases cited); Alzina v. Industrial Comm., 309 Ill. 395. (3) Smith v. Levis-Zukoski, 14 S.W.2d 470, l. c. 473; Stone v. Blackmer & Post Pipe Co., 27 S.W.2d 459, l. c. 460; Hager v. Pulitzer Pub. Co., 17 S.W.2d 578, l. c. 580. (4) While the courts may take judicial notice of well-established facts, they cannot take such notice of the eccentricities of lightning. 23 C. J., pp. 60, 143; Jones on Evidence (3 Ed.), sec. 129, p. 172; 1 Jones' Commentaries on Evidence (2 Ed.), secs. 368, 461; Timson v. Manufacturer's Coal and Coke, 119 S.W. 565; Morfit v. Thompson, 282 S.W. 113; Wiggins v. Ind. Accident Board, 170 P. 9; Lickfett v. Jorgenson, 220 N.W. 138; Wells v. Robinson Constr. Co., 16 P.2d 1059; Netherton v. Lightning Delivery Co., 258 P. 306; Dixon v. Niccolls, 39 Ill. 372. (5) Thier v. Widdifield, 178 N.W. 16; Wiggins v. Ind. Accident Board, 170 P. 9; Lickfett v. Jorgenson, 229 N.W. 138; Griffith v. Cole Bros., 165 N.W. 577; Wells v. Robinson Constr. Co., 16 P. 1059; Deckard v. Trustees of Ind. Univ., 172 N.E. 547; Hoenig v. Ind. Comm. of Wis., 150 N.W. 996; Carey v. Industrial Comm., 194 N.W. 339; Alzina Const. Co. v. Ind. Comm., 309 Ill. 395; Netherton v. Lightning Del. Co., 258 P. 306; Gale v. Krug Park Amusement Co., 114 Neb. 432; Klawinski v. Lake Shore Ry. Co., 185 Mich. 643, 152 N.W. 213; Rush v. Empire Oil Refining Co., 34 P.2d 542; Brooks v. Greenberg, 67 S.W.2d 823; Van Kirk v. Hume Sinclair Coal Co., 49 S.W.2d 631.

Roy Hamlin for appellant.

(1) The commission's findings of fact, in the absence of fraud, are conclusive and binding upon the circuit judge. Cobb v. Standard Accident Ins. Co., 31 S.W.2d 573; Kinder v. Hannibal Car Wheel Co., 18 S.W.2d 91; State ex rel. v. Haid, 38 S.W.2d 44; Harbour v. Gardner, 38 S.W.2d 295; Schaefer v. Lowell-Krekeler Groc. Co., 49 S.W. 2d 209; Kane v. St. Louis Refrig. Transit Co., 83 S.W.2d l. c. 595; Doughton v. Refining Co., 331 Mo. 280, 53 S.W.2d 236; Miller v. Transfer Co., 224 Mo.App. 1114, 32 S.W.2d 449. (2) Hammack v. West Plains Lbr. Co. et al., 30 S.W.2d 650; Cobb v. Standard Accident Co., 31 S.W.2d 573; Mettig v. Lehr Const. Co., 32 S.W.2d 121; Cotter v. Valentine Coal Co. et al., 14 S.W.2d 660. (3) Buchanan v. Nicozisis, 78 S.W.2d 492, l. c. 494 and 495; De Moss v. Fire Brick Co., 57 S.W.2d 720, 92 Conn. 277; 1 Schneider on Workmen's Compensation, sec. 343; 1 Honnold on Workmen's Compensation, p. 381; L.R.A. (1916) A 348; Van Kirk v. Hume Sinclair Coal Mining Co., 49 S.W.2d 631; Consolidated Pipe Line Co. v. Mahan (Okla.), 3 P.2d 846; Van Kirk v. Hume Sinclair Coal Mining Co., 49 S.W.2d l. c. 634; Netherton v. Lightning Del. Co., 32 Ariz. 350, 258 P. 306, 308; Emmick v. Brick & Ice Co., 206 A.D. 580, 201 N.Y.S. 637, 638, 639.

BENNICK, C. Hostetter, P. J., and Becker, J., concur; McCullen, J., absent.

OPINION

BENNICK, C.

--This is a proceeding by Velma Buhrkuhl, the totally dependent widow of Thomas Buhrkuhl, to recover the death benefit provided by the Workmen's Compensation Act (Secs. 3299-3376, R. S. 1929; Mo. St. Ann., secs. 3299-3376, pp. 8229-8294). The F. T. O'Dell Construction Company is the employer, and the Fidelity & Casualty Company of New York the insurer.

Buhrkuhl was killed as the result of being struck by lightning on August 11, 1932; and the issue before the commission was that of whether his death was by accident arising out of and in the course of his employment, or whether instead it came about as the result of an act of God operating wholly independently of his employment.

The award of the commission, with one member dissenting, was in favor of the dependent, and against the employer and insurer, for a sum well within our jurisdiction. The latter thereupon appealed to the circuit court, wherein a judgment was entered reversing and setting the award aside. From such judgment the dependent's appeal to this court has been perfected by the proper steps.

The ultimate question for our decision is whether there was sufficient competent evidence adduced to have supported the award in favor of the dependent.

The deceased was employed on a construction job on a road which ran from the town of Center, in Ralls County, Missouri, to a point known as Asher's Ford. His work was to move and wheel dirt with a team and a metal slip or scoop. There were all told some eight or nine men employed on the particular project, a majority of whom were farmers residing in the immediate neighborhood, but who accepted work on the highway from the employer and furnished their own teams on the job.

At the time in question the work was being carried on in the vicinity of the farm of Monroe Asher, and in fact at a point where the right of way for the road ran within seven feet of the corner of Asher's barn. During the two weeks that the work had been in progress the Asher place had been looked upon as a "sort of headquarters" for the construction project. Those of the men, including the foreman, who did not live in the neighborhood, customarily ate and slept in Asher's house; all the men watered their teams at a well in his barn lot; and on two occasions at least when rains came up during the working hours, they and their teams were shown to have taken shelter in his barn or outbuildings.

Shortly after the lunch hour on August 11, 1932, a heavy storm came up accompanied by a great amount of rain, lightning, thunder, and wind. Inasmuch as the force of the storm was evidently too great for work to be done during its progress, the foreman told his men to "go on and unhitch and hunt your shelter," whereupon they did unhitch their teams and at once proceeded to take shelter in Asher's barn and other outbuildings as they had done under similar circumstances on the day before. It appears that the Asher barn and outbuildings constituted the only available shelter in the neighborhood, and it is a significant fact that on both days the foreman accompanied his men inside to seek protection from the elements. The significance of all this is that while there is no claim that the foreman told his men in so many words that they should take shelter on the Asher premises, yet it was so understood by all of them when he gave the order, and the legal situation is therefore the same as though the foreman had specifically told the deceased to go into the barn where he was when he was killed.

It is also a material fact upon the issue of whether the accident might be said to have occurred during the course of the employment that when the men were told to unhitch and hunt shelter, they were not dismissed from their employment for the day, but were expected to leave their shelter and return to their respective duties as soon as the rain should cease falling.

Upon the order to unhitch, some few of the men took shelter in a granary or shed, but four of them, including the deceased and the foreman, went inside the barn with their teams to await the end of the storm. The testimony shows that aside from the four men, there were sixteen horses inside the barn, in which, in addition, Asher was housing a tractor and a plow. It appears also that the barn had the usual loft in which some 660 bales of hay were stored.

Whatever may have been its importance upon the question of her right to compensation, the dependent undertook to lay considerable stress on the fact that the men and horses were closely crowded together in the barn, and that both men and horses were dripping wet from the rain. At any rate, while huddled together in the barn in such a fashion, a bolt of lightning struck the barn killing the deceased and six of the horses, but fortunately inflicting no substantial injury upon any other man or beast. The tractor was not damaged by the lightning, and was removed from the barn before the same was burned to the ground. The plow, however, had apparently been struck by the lightning, and was burned beyond all recognition.

So far as the lay of the land is concerned, the Asher place is in the open country, with the nearest hill an eighth of a mile away, and the nearest woods a mile distant. In the immediate vicinity, in addition to the barn in which the deceased was killed, there was the farmhouse, together with a shed or granary. There was evidence to show that the three buildings in question sat upon ground which was slightly elevated about the surrounding terrain, and that the barn, which was about 25 feet in height, was the tallest of the three buildings in the group. It was also shown that while the storm was quite a general one, with flashes of lightning in evidence in all directions, yet the Asher barn was the only object struck during the storm for many miles around.

The dependent predicates her right to compensation upon the theory that the act of the deceased in seeking shelter from the storm (and particularly so at his foreman's direction), did not serve to interrupt the course of his employment, and that his death by being struck by lightning...