Childs v. Rayburn

• Decision Date: 12 May 1976
• Docket Number: No. 1--1275A223,1--1275A223
• Citation: 346 N.E.2d 655,169 Ind.App. 147
• Parties: Howard CHILDS, Defendant-Appellant, v. Eugene RAYBURN, Jr., Administrator of the Estate of Steven D. Rayburn, Deceased, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 655

346 N.E.2d 655

169 Ind.App. 147

Howard CHILDS, Defendant-Appellant, v. Eugene RAYBURN, Jr., Administrator of the Estate of Steven D. Rayburn, Deceased, Plaintiff-Appellee.

No. 1--1275A223.

Court of Appeals of Indiana, First District.

May 12, 1976.

Harold H. McConnell, Hamilton & McConnell, North Vernon, for defendant-appellant.

Robert J. Brown, North Vernon, for plaintiff-appellee.

LOWDERMILK, Judge.

The proceedings leading to this appeal were initiated when plaintiff-appellee (Rayburn) filed an action against appellant (Childs) for the wrongful death of his son, Steven. This action was filed by Rayburn as administrator of Steven's estate, and alleged that Childs, as Steven's employer, permitted Steven to remain in an open field in spite of an approaching thunderstorm. Rayburn alleged that this act of negligence resulted in Steven being struck and killed by a bolt of lightning.

Childs' answer first requested dismissal of the action for failure to state a claim. However, the exact nature of the alleged failure is not set forth in the answer or other papers. Childs also denied several paragraphs of the complaint and requested Rayburn take nothing by his action.

At the trial of the cause, after Rayburn had rested, Childs filed a Motion for Judgment on the Evidence, which alleged, first, that Rayburn as administrator was not the proper party to maintain an action for the death of an unemancipated minor, and, second, that the evidence established that the sole proximate cause of Steven's death was an Act of God--lightning. The trial court denied the motion as to count two (2) at once, and, after further deliberation, sustained count one (1). Also at this time, Rayburn's motion to amend the complaint was granted, and Rayburn as guardian was substituted in place of Rayburn as administrator.

The evidence at trial revealed that on the day of Steven's death, Steven, another youth and Childs were in an open hay field, with Childs driving a tractor, and Steven and the other youth riding on a wood and metal wagon. Steven was engaged in stacking bales of hay on the wagon as they came from the baling machine which was also being pulled by the tractor. Just prior to the lightning strike, the wagon had been stopped on a small rise to adjust the load, and Steven was working on top of the wagon while the others were on the ground assisting him.

Childs did not testify, but the other young worker stated that when Steven was struck down, it was not raining, and that it was partly sunny before Steven's death. He also stated that he was unaware of thunder or gathering clouds, but that this may have been due to the noise of the baler, and his haste to keep up with his work.

Other witnesses who were near the field the day of Steven's death testified that they saw and heard an approaching storm and that they ceased their various activities in order to seek shelter. The testimony of these witnesses indicated that the storm was not unusually large or fast-moving.

Finally, Rayburn's expert witness testified, inter alia, that lightning takes the shortest path to the ground, and thus will usually strike the highest object in the area. The expert further stated that one of the best and easiest ways to protect against lightning was to take shelter--and this included moving out of open fields where the human form could be the highest object.

After all of the evidence, the jury returned a verdict for Rayburn, and awarded five thousand dollars ($5,000.00) damages.

I.

Was Steven's death the result soley of an 'Act of God.'

Childs' first argument is that there was no evidence whatsoever that he was negligent or that his negligence, if any, was the proximate cause of Steven's death. Childs contends that no one present in the field established any acts or omissions amounting to negligence, and that to impose liability would hold him to an impossible standard which requires that he be able to predict the time and place of a lightning bolt. Thus, Childs asserts that the lightning was not foreseeable, and that his failure to foresee the same could not have been the proximate cause of Steven's death.

'An 'act of God' has been variously defined or referred to as an unusual, extra ordinary, sudden, and unexpected manifestation of the forces of nature which man cannot resist; an extraordinary convulsion of nature or a direct visitation of the elements, against which the aids of science and skill are of no avail; an accident produced by physical causes which are irresistible, and a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone. There are also minor variations of the above definitions, but on the whole, the more commonly recognized view today seems to require a direct, violent, and irresistible act.'

1 Am.Jur.2d Act of God, § 1 (1962), footnotes omitted.

Our own courts have defined an 'Act of God' as follows:

'. . . An act of God is the manifestation of a superhuman power which breaks the chain of causation in the realm of human activity. It upsets the best-laid plans of men and spoils all their calculations. Because its coming is beyond the scope of man's prevision and its power beyond his strength to resist, he is not liable for the consequence thereof. . . .'

Chicago and Erie Railway Co. v. Schaff Brothers Co. (1917), 74 Ind.App. 227, 230, 117 N.E. 869, 870.

Also, see the cases collected at Annot., 62 A.L.R.2d 796, §§ 1, 5 (1958).

There can be no question that lightning is an 'Act of God' as defined above. Further, in the case at bar, it is clear that the actual and direct cause of Steven's death was a lightning bolt. We cannot agree, however, that such a conclusion dictates that we forego further review of this issue.

Over half a century ago this court, in Sarber v. City of Indianapolis (1920), 72 Ind.App. 594, 600, 126 N.E.2d 330, 331, stated:

'It is settled that where several causes, dependent or independent of each other, all contribute to an injury, an action may, in a proper case, be founded upon all or any of the causes (Louisville, etc., R. Co. v. Hicks (1894), 11 Ind.App. 588, 37 N.E. 43, 39 N.E. 767), and that where two causes combine to produce an injury both being proximate, one the result of negligence, the other an incident, as to which neither party is at fault, the negligent party is liable if the injury would not have happened but for such negligence. Toledo, etc., R. Co. v. Tapp (1892), 6 Ind.App. 304, 33 N.E. 462.'

This principle has been re-stated several times by the courts of this State: Inland Steel Co. v. King (1915), 184 Ind. 294, 110 N.E. 62; Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847; New York Cent. R. Co. v. Cavinder (1965), 141 Ind.App. 42, 211 N.E.2d 502; Krohn v. Shidler (1966), 140 Ind.App. 175, 221 N.E.2d 817.

This concept of concurring negligence or causation is applicable to those situations where one of the two proximate causes of injury is an Act of God and the other is personal negligence. In 1 Am.Jur.2d Act of God, § 2 (1962) the proposition is stated as follows:

'A careful analysis of the various definitions of an act of God discloses that practically all agree in requiring the entire exclusion of human agency from the cause of the injury or loss. Where an intervening human agency contributes to cause the damage complained of, such damage cannot be said to have been caused by an act of God. Nor can the defense that the damage complained of was the result of an 'act of God' be successfully made where the injury could have been avoided by precaution. In other words, a casualty cannot be considered an act of God if it results from, or is contributed to, by human agency, and that which may be prevented by the exercise of reasonable diligence or ordinary care is not an act of God.

(Our emphasis, footnotes omitted.)

The courts of this State have recognized those situations where an Act of God may concur with human negligence, and have held that the negligence may result in liability for any injury occurring as a consequence of the combined forces.

'. . . If, then, an unforeseen danger arose due to conditions which could not have been anticipated and caused damage to the property of appellant, the liability of appellees must be settled by determining whether or not the negligent failure of appellees to provide against the dangers which could have been reasonably anticipated was the proximate cause of the danger which actually arose by reason of a condition that could not have been reasonably foreseen. If due care in providing against dangers which could have been reasonably anticipated would have prevented or avoided the unforeseen danger which actually arose and caused the injury, then, the negligence in failing to use such care must be regarded as the proximate cause of the injury if acting alone, and if acting in conjunction with another force, such as the act of God, it must be deemed a concurring proximate cause. On the other hand, if the observance of due care in providing against known dangers would not have prevented or turned aside the danger which arose and produced the injury, then, the failure to observe such care could not be regarded as a proximate cause of the injury.'

Watts v. Evansville, etc. R. Co. (1921), 191 Ind. 27, 53, 129 N.E. 315, 323.

'. . . In such a case as this, however, a defendant may be liable for the damages caused by the waters of a flood. In its relation to resulting damages a flood is classed as an act of God in a legal sense with the consequent immunity of man from liability, only in the absence of human agency wrongfully or negligently contributing to produce the injury complained of. (Citation omitted.)

'Where the injury complained of is to some extent the result of the wrongful or negligent participation of man the consequences are regarded as exclusively of human origin in so far as concerns the question of liability, and the situation is removed from...