Felden v. Horton & Coleman

• Decision Date: 10 August 1939
• Citation: 135 S.W.2d 1115,234 Mo.App. 421
• Parties: MRS. BEULAH FELDEN ET AL., DEPENDANTS OF JOSEPH L. FELDEN, DECEASED, RESPONDENTS, v. HORTON & COLEMAN, INC., A CORPORATION, EMPLOYER, AND THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, A CORPORATION, INSURER, APPELLANTS
• Court: Missouri Court of Appeals

135 S.W.2d 1115

234 Mo.App. 421

MRS. BEULAH FELDEN ET AL., DEPENDANTS OF JOSEPH L. FELDEN, DECEASED, RESPONDENTS, v. HORTON & COLEMAN, INC., A CORPORATION, EMPLOYER, AND THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, A CORPORATION, INSURER, APPELLANTS

Court of Appeals of Missouri, Springfield

August 10, 1939

Rehearing Denied. September 13, 1939.

Appeal from the Circuit Court of Mississippi County.--Hon. Frank Kelly, Judge.

Judgment reversed.

George A. Hodman and Robert S. Lindsey for appellants.

Eugene M. Munger for respondents.

FULBRIGHT J. Smith, J., concurs; Allen, P. J., absent.

OPINION

FULBRIGHT, J.

Claim was made for compensation as provided in the Missouri Workmen's Compensation Law for death of Joseph L. Felden by lightning. As a defense the employer and insurer asserted that the death was due to an act of God and not to injury arising out of and in the course of his employment. The Referee and the full Commission found that the employee met his death as the result of an electrical storm, but denied compensation for the reason that his employment did not subject him to any extra hazard from said condition. Claimants appealed to the circuit court which found that "the Commission erred in its conclusion of law that the deceased was not subjected to greater hazard by reason of his employment." From the judgment of the circuit court reversing the commission the employer and insurer appealed to this court.

The evidence at the hearing showed that on and prior to the day of his death Mr. Felden had been in the employment of Horton & Coleman, Inc., who were engaged in repairing a levee on the Mississippi River which had been broken by a flood. At the break the water was pumped back into the river by a gasoline engine operated by Mr. Felden. The engine and pump were on the river side of the levee, and on the land side were three small wooden shacks, two of which served as living quarters for the engineers in charge of the work, and the third as storage place for tools and materials. Shortly before three o'clock on June 27, 1937, a hot day, there was a light shower followed by sunshine. About 3 o'clock Mrs. Berry, wife of one of the engineers on the work, walked along the levee toward the place where the drag line machines were in operation to met her husband who came off duty at that time. She saw deceased sitting on a wooden box on the crown of the levee, facing the drag line machines which were about one thousand feet away. As she approached deceased she noticed that another storm was coming. He spoke to her, saying that it looked like a storm. Mrs. Berry returned to her shack and the storm broke. The rain was heavy and the lightning flashed, a particularly severe flash occurring about 3:25 or 3:30 o'clock. About 5:30 o'clock Mr. Felden's body was discovered by one of the engineers. It lay on the river side of the levee seven to fifteen feet from the wooden box on which Mr. Felden had been seated when Mrs. Berry saw him. The head lay toward the river, the feet lay a few feet below the crown of the levee. On the crown of the levee and within six or seven feet of the feet of the deceased, was a five gallon can of gasoline without a cap, and nearly full of gasoline. "Kind of laying on his hand" was a steel wrench. A few scratches were on the face and blood was in one, or possibly both, of the ears. The coroner testified that there was something that looked like a bruise on one foot, but that there was no evidence of burns. The left shoe showed a separation between the sole and upper on the inner side, and his hat had a hole in it, but these conditions are not definitely linked with the lightning.

The distance from the pump to the small structures above referred to was about 600 to 700 feet, and the pump was about the same distance from the place where Mr. Felden's body was found. His parked automobile was from 35 to 125 feet from the place where his body was found, the distance being variously estimated by the several witnesses. From the nearest of the three shacks to the body it was about 150 feet, and to the one farthest away where Mr. and Mrs. Berry lived, it was about 250 feet along the line of the levee. On the land side of the levee, probably about 60 to 70 feet from the tool storage shack were some drums of gasoline which furnished the fuel for the engine. Somewhere near the gasoline drums there may have been a spool or two of new steel cable, and a discarded, broken unattached steel cable about 150 feet long lay along the river side of the levee and extended over the top to the land side. It had been there for some time and was more or less covered with dirt and lay in or upon the earth. The body of Mr. Felden was found about thirty-five feet from the nearest position of this old cable.

The levee on the land side was about seventeen feet high. The crown had originally been about eight feet in width, but rain had leveled it off somewhat. The levee was covered with weeds, some as high as six feet. On the river side along the liver at this point was a wide stretch of sand from 100 to 150 feet wide, extending to within a few feet of the top of the levee which had to be crossed to get to the pump. On the river side of this sandy level were willows and cottonwoods, some of which were 40 to 45 feet high. Beyond these trees was the pump, and still farther out was the Mississippi River.

Appellants' contention is that the circuit court erred "in reversing the final review award of the Workmen's Compensation Commission. The finding of the Referee, affirmed unanimously by the Commission upon review, was that upon the evidence the employment of deceased did not subject him to any extra hazard. This finding was correct since the evidence adduced on the point, supported the award by an adequate, legal sufficiency. So supported, the award of the Commission had all the force and validity of a special verdict, and the circuit court erroneously set it aside, contrary to the provisions of the act, particularly section 3342, Revised Statutes of Missouri, 1929."

Our act provides compensation for injuries by accident "arising out of and in the course of" the employment. Death by lightning, under certain conditions, may be an accident arising out of the employment, although it falls within the definition of "an act of God." As was said in the case of Netherton v. Lightning Delivery Co. (Ariz.), 258 P. 306, in which lightning had caused death of an employee, "Each case must therefore be considered on its own facts. But the standard for testing these facts is always the same, to-wit, Did the employment increase the danger?"

The deceased was employed to attend a pump propelled by gasoline power. It was his duty to keep watch over the pump, and see that it was supplied with the necessary amount of gasoline to keep it in...