Jackson v. Bailey

• Decision Date: 15 December 1958
• Docket Number: No. 40958,40958
• Citation: 107 So.2d 593,234 Miss. 697
• Court: Mississippi Supreme Court
• Parties: Johnnie Pearl JACKSON v. Robert K. BAILEY, Jr., and U. S. F. & G. Co.

Page 593

107 So.2d 593

234 Miss. 697

Johnnie Pearl JACKSON v. Robert K. BAILEY, Jr., and U. S. F. & G. Co.

No. 40958.

Supreme Court of Mississippi.

Dec. 15, 1958.

James Stone & Sons and T. H. Freeland III, Oxford, Kenneth Rayner, Memphis, Tenn., for appellant.

McClure, Fant & McClure, Sardis, for appellees.

HALL, Justice.

This is a workmen's compensation case. The appellant claims benefits as the widow of Robert Jackson, deceased. There are two issues for decision by us. One is whether or not the death of Robert Jackson is compensable, and the other is whether the appellant is entitled to compensation, if any is due, as the widow. The attorney-referee found that the death of the deceased did not arise out of and in the course of his employment and he did not make any finding as to whether or not the appellant was the widow of deceased within the purview of the Workmen's Compensation Law. The Workmen's Compensation Commission held that the claim was compensable but that the appellant was not the widow of deceased within the purview of the Act. On appeal to the circuit court it reinstated the opinion of the attorney-referee, finally disallowing, denying and dismissing the claim, from which this appeal is prosecuted by the claimant.

There is no dispute as to the facts in this case and the question for decision is purely one of law. Hence this is not a case where there is substantial evidence to support the order of the Commission.

Robert Jackson resided in DeSoto County, Mississippi. He was employed by Robert K. Bailey, Jr., to do manual labor in doing some revetment work along the Mississippi River in connection with a contract which Bailey had with the Government. Forty percent of this work was done in Mississippi, forty percent in Arkansas and twenty percent in Tennessee. Mr. Bailey was a citizen of DeSoto County, Mississippi, and the Mississippi law unquestionably applied to this employment.

On August 10, 1956, Robert Jackson left his home in DeSoto County and rode with another employee to the point in Tennessee, just a short distance north of the state line between Tennessee and Mississippi, where the entire crew was put to work. They continued at that point for about one and one-half hours and then they were moved down the river, nearer to the Mississippi line, where they resumed their labor and so continued until shortly after noon. Then they were told to move to a third point down the river, still nearer to the Mississippi line. They proceeded en route to the third point where they were directed to work, but there was no public road available but only a farm road. They finally came to a place where the road was blocked with limbs and they had to stop. They were riding in an open metal body truck, without any covering over the same, on which there was loaded an air compressor which weighed about 1,800 pounds. Mr. Bailey and Mr. Fasackerly were following them. Fasackerly was superintendent of the job and directed the employees to wait at the point where they were stopped while he and Mr. Bailey looked for some other route which could be followed to the place where they were to work. By this time it was drizzling rain and the clouds were overhanging and the wind blowing from the southwest and there were flashes of lightning in the air.

While they were waiting at this point for the return of Mr. Fasackerly and Mr. Bailey, they alighted from the truck in which they were riding and three of the men, including the deceased, were standing within three feet of the truck, on wet ground and in wet clothes, when a bolt of lightning unexpectedly struck the three, inflicting death upon Robert Jackson and seriously injuring the other two. This occurred in a practically level place and where there was no shelter to which the men could seek refuge,--in fact where they were placed by the superintendent. It was in an open place and there were no trees in less than about 300 feet.

Bearing in mind that the Compensation Act must be liberally construed, we are of the opinion that the death of Robert Jackson arose out of and in the course of his employment at a time when he was where the master had placed him.

In the case of Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So.2d 622, 624, we were dealing with a man whose death occurred during the tornado which struck the City of Vicksburg in 1953. That man was required to work on a dragline near the Mississippi River. One of his duties was that in case of rain he should use a tarpaulin to cover the brake drums on he dragline and to keep it in place. While he was thus engaged the tornado struck and picked up a boat rudder from some point down the river and cast it against his body on top of the dragline with such force as to sever his head and cause his immediate death. In this case we said: 'Clearly Evans' death occurred while he was in the course of his employment, performing the necessary and usual duties of his job. We think also that his injury arose out of his employment. All of the courts agree that injury due to windstorm, as well as to lightning, earthquake, freezing, sunstroke and exposure to contagious diseases, arises out of the employment if the employment increases the risk of this kind of harm. 1 Larson, Workmen's Compensation Law (1952) Sec. 8.20. In other words, if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements, which increases the risk of injury and is within the sphere of the employment, such injury arises out of the employment. 58 Am.Jur., Workmen's Compensation, Sec. 260; 6 Schneider, Workmen's Compensation Text (1948) Sec. 1552, pp. 78-89; Malone, Louisiana Workmen's Compensation Law and Practice (1951) Sec. 193; Horovitz, Workmen's Compensation Law (1944) pp. 99-107; Annotations in 13 A.L.R. 974, 25 A.L.R. 146, 40 A.L.R. 400, 46 A.L.R. 1218, 83 A.L.R. 234.

'* * * Clearly Evans' employment increased the risk of this kind of harm to him. Accordingly, under the universal rule his job was a contributing factor to his injury and death. They were connected in fact with his employment. Hence death arose out of his employment. The test is connection in fact with the employment, not whether it is foreseeable in advance, or apparently only in retrospect.

'Since this accident manifestly comes within the universally recognized increased risk test, we do not need to consider at this time the other criteria which have been used by the courts in deciding compensation cases involving 'acts of God' and exposure to the elements, such as the actual risk doctrine, the positional risk test, and the contact-with-the-premises-exception, which are discussed so lucidly in Mr. Larson's textbook, supra, Sections 6 through 8.

'Appellants claim that the position of the employee was no different from that of the general public and was common to the neighborhood, so no causal relationship exists. However, Evans' job placed him in a position of increased risk. Moreover, whether the risk is common to others in the vicinity is of little if any value in determining whether in fact the injury is connected with the employment.'

In Vol. 1 of Larson's Workmen's Compensation Law, Sec. 8.42, there is a dicussion of the question as to when an injury occurs in the course of employment and the writer says on page 65: 'Since most of these cases arise during extremely hot, cold, rainy or stormy weather, the most direct way to approach a working rule is to ask: what does the average man, free of the obligations of any particular employment, do when it is twenty below, or a hundred in the shade, or raining, sleeting or snowing violently? There may be various answers to what he does, but there is one clear answer to what he does not do. He does not stay outdoors all day. Yet a surprising number of cases narrow the class of the 'general public' to people who do just that.'

In the same section of the same work, Mr. Larson discusses several cases and says: 'But the whole point is that these workers are outside because it is the nature of their employment to require them to be outside. Unless so required, any sane and adult member of the general public is supposed 'to have sense enough to come in out of the rain."

It will be remembered that the facts show without dispute that Robert Jackson was ordered to remain at the point where he was killed, and the record shows that he could not leave that point without incurring the risk of being fired, and consequently he was not able to seek shelter from the rain and lightning. In this connection, in the same section of Mr. Larson, on page 68, he says: 'The other principal respect in which the increased-risk has sometimes not been fairly applied is the failure to recognize that the obligations of the employment will often not permit the employee to obtain shelter or relief from the elements, even when such...