Keller v. State Comp. Comm'r.

• Decision Date: 08 December 1942
• Docket Number: (No. 9367)
• Parties: Eva Keller, Widow, etc. v. State CompensationCommissioner et al.
• Court: West Virginia Supreme Court

125 W.Va. 185

Eva Keller, Widow, etc.

v. State CompensationCommissioner et al.

(No. 9367)

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1942.

Decided December 8, 1942.

Workmen's Compensation

Where an employee's death results from a sunstroke suffered at a time when such employee was working outdoors, and there is substantial evidence to the effect that by reason of his exposure to the rays of the sun and the reflected heat therefrom, necessitated by his employment, such employee was exposed to a heat greater than that endured by the general public in the vicinity of his employment, such death is caused by an injury within the meaning of the Workmen's Compensation Act (Code, 23-4-1), and an order of the Workmen's Compensation Appeal Board affirming an award of compensation to decedent's widow is proper.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Eva Keller, claimant, to recover compensation for the death of her husband, Chester G. Keller, employee, opposed by J. Natwick and Company, employer. From an order of the Appeal Board, affirming an order of the State Compensation Commissioner awarding compensation, the employer appeals.

Affirmed.

Lovins, Judge, and Fox, President, dissenting.

McCauley & McCauley and Campbell, McClintic & James, for appellant.

H. G. Muntzing, Ralph J. Bean and Paul J. Hartman, for appellees.

Riley, Judge:

J. Natwick and Company, a subscriber to the Workmen's Compensation Fund, appeals from an order of the Appeal Board entered on April 11, 1942, affirming an order of the Commissioner of January 24, 1942, vacating his order of February 11, 1941, and awarding compensation to Eva Keller for the death of her husband, Chester G. Keller, upon the statutory basis of thirty dollars monthly.

Decedent, an employee since June, 1939, of J. Natwick and Company, a corporation, engaged in the dressing of lumber in Hardy County, was taken sick at four o'clock on the afternoon of July 30, 1940, while driving spikes in the repair of the center of three sets of steel railroad tracks leading into appellant's plant, which was situate in the vicinity of Moorefield. He died early the following morning. According to the testimony of the two physicians who attended him, his death was the result of a sunstroke.

The record discloses that decedent was only twentyeight years of age; that on July 30, 1940, according to the Government weather observer who lived and recorded the temperatures eight miles east of Moorefield, the maximum temperature on that day was one hundred degrees in the shade; and that the work was being done about seventyfive feet from a large building, a part of appellant's plant. In addition to the heat produced by the direct rays of the sun, decedent was also exposed on that day to the reflected heat from the buildings belonging to the lumber plant, the steel rails in the three sets of tracks, and the cinders thereunder. The record further contains substantial evidence to the effect that it was much hotter at the place where decedent was working than at other places in the vicinity.

We think that this case is controlled by Rasmus v. Workmen's Compensation Appeal Board, 117 W. Va. 55, 184 S. E. 250, and Collett v. State Compensation Commissioner, 116 W. Va. 213, 179 S. E. 657. In point 3 of the syllabus of the Collett case, this Court held:

"Heat exhaustion attributable to a specific event is compensable under our Workmen's Compensation Act, if shown to have resulted from special or particular risks or dangers attendant to the employment, to which the general public is not exposed."

The instant record clearly discloses that decedent died as the result of a sunstroke suffered during the course of his employment; that at the time and place he was taken sick, he had been exposed during the course of the previous part of that day to the direct and reflected heat of the sun greater than the exposure endured by the general public in that vicinity, and that his exposure was such that it directly caused the illness which resulted in his death. In these circumstances, his death is compensable.

Upon examination we find that there are numerous authorities in other jurisdictions on the question whether death resulting from the elements is compensable. We shall not attempt to appraise these cases, because each case should be considered in the light of the compensation statute of the jurisdiction involved. However, for a general collation of authorities, see the following A. L. R. notes: Central Illinois Public Service Co. v. Industrial Commission, ...