Kroon v. Kalamazoo County Road Commission

• Decision Date: 18 February 1954
• Docket Number: No. 2,2
• Parties: KROON v. KALAMAZOO COUNTY ROAD COMMISSION et al.
• Court: Michigan Supreme Court

Page 641

62 N.W.2d 641

339 Mich. 1

KROON v. KALAMAZOO COUNTY ROAD COMMISSION et al.

No. 2.

Supreme Court of Michigan.

Feb. 18, 1954.

L. J. Carey, Geo. J. Cooper, Detroit, for appellants. Bruce W. Griffin, Grand Rapids, of counsel.

Fox, Fox & Thompson, Kalamazoo, for appellee.

Before the Entire Bench.

CARR, Justice.

On the 27th of June, 1951, Joseph Kroon, the son of the plaintiff herein, was working for the defendant Road Commission at a gravel pit in Kalamazoo county. Several pieces of equipment used in connection with the work were located in proximity to the pit. Such equipment included a crane with a 40-foot boom raised approximately 30 feet in the air and a screening machine 13 feet in height. About 2:30 p. m. it began to rain, and Kroon started towards the screening machine for shelter. He was at the time carrying over his left shoulder a wooden handled shovel with a metal scoop, the scoop extending approximately one foot above his head. Before he had reached the screening machine and when he was approximately 300 feet distant from it he was struck and killed by a bolt of lightning. The record indicates that such bolt was the only one in the vicinity during the afternoon. Apparently the lightning struck the point of the shovel, melting it, burned a place on the handle, and thence entered the body of the deceased.

Plaintiff instituted the present proceeding, claiming partial dependency and that the death of her son resulted from a compensable injury arising out of and in the course of the employment. The deputy of the workmen's compensation commission before whom the proofs were taken found in plaintiff's favor. The award made, modified only as to the date of the injury, was affirmed by a majority of the commission, one member dissenting. Defendants, on leave granted, have appealed, claiming that there was no evidence before the workmen's compensation commission to support its finding.

On the hearing before the deputy plaintiff offered the testimony of Dr. Paul Rood, Chairman of the Department of Physics at Western Michigan College, who testified that he had studied electricity, including lightning, as a branch of physics, reading authoritative works on the subject. His testimony was received on the theory that he had been properly qualified as an expert. In answer to a hypothetical question he stated in substance that in his opinion the likelihood of Kroon being struck by a lightning bolt was increased because of the face that he was carrying the shovel over his shoulder and that it projected above his head. The following excerpt from his testimony indicates its general nature:

'Q. We have no idea of the area where a bolt of lightning is going to strike? A. Yes, I should say we do. I will put it this way: If we knew where the charge and the crack was in the could just moving by, if we knew where the charge was we would have a very good idea where the lightning might strike.

'Q. Well, over how large an area? A. We can't say because we can't measure where that charge is. It may be over quite a large area. It may be over a limited area.

'Q. Let's say a large area; how large would that be? A. I wouldn't be able to say.

'Q. Would you say over an area of a mile in circumference? A. It could be, I suppose. I would guess that it was not of that size. I would say smaller than that.

'Q. Would you say a half mile in circumference? A. Again I don't like to say definitely. I would say it could be over an area as small as a few feet in diameter, the charge concentration, or it could be over an area perhaps a half mile long. It depends entirely----

'Q. Then if it were in an area let's say a half mile in diameter, it would be more likely that lightning would strike an object that was the highest in that immediate vicinity? A. That is true.

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'Q. In your studies, Doctor, the phenomena of lightning, have you run across very many cases where a man has been struck by lightning on level ground? A. Not in my own experience, but I have heard from other sources that this has happened. I'll take that back. I wouldn't say definitely when a man was walking along on level ground, I don't know of a particular case, but I have heard of many cases of men being struck by lightning. Not specifying under what conditions, because I don't have the facts on that.

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'A. One thing I think we could say, we do know, and this also I believe is accepted by the man that studies lightning, is that if the man carrying the shovel seven feet high is struck, he would receive the bolt of lightning which might have hit the ground in that area at any place over a circle of a diameter of 28 feet. They usually use a four to one ratio. That is, the man was in the center of a circle 28 feet in diameter, if anywhere in that circle a point on the ground would be struck without the man there, when the man is there he gets it, no matter where he is in that circle.

'Q. No matter whether he is carrying a shovel? A. I am assuming a man with a shovel seven feet high, and 28 feet would be sort of a protected area, and 28 feet in diameter around this man he would get the charge of the bolt of lightning that might strike in this area.

'Q. Without the shovel? A. Four to one. It is twenty-four.

'Q. Twenty-four if he didn't have the shovel, and also within this area the chances are he would be struck by lightning, if it was within an area of 24 feet? A. Yes.

'Q. Because he does have the shovel and puts the point up one foot higher, then we have an area of 28 feet? A. The chances are as 28 squared to 24 squared. It varies with the square. I figure it is about a 40% greater chance of being struck, this man, because he carried the shovel one foot higher than his head.

'Q. If lightning is in that area? A. Yes, sir.

'Q. But if lightning is in that 24 foot area, whether he has a shovel or not, he hasn't got a chance, has he? A. If we could assume that the charge is in that area of 24 feet and lightning was going to strike there, it would strike him, let's put it that way.

'Q. We do know then that within a 24 foot area if a man is standing there he is going to get struck by lightning? A. No.

'Q. We don't know that? A. No.

'Q. By the same token--A. If lightning was going to strike there. We can't tell. If it was going to strike there anywhere in the 24 foot, if he had no shovel, he would be the one that would be struck, that is the chance.

'Q. And with the shovel in a 28 foot area? A. Yes, sir; but I think that is misleading, just to leave it 28 and 24, because the chances don't depend on 28 to 24; it depends on 28 squared to 24 squared.'

The award of the compensation commission was based on the testimony of Dr. Rood which, as the excerpts above quoted indicate, was somewhat theoretical in nature rather than factual. Assuming, however, that Kroon would have been struck by lightning had the charge or bolt been within the area of a circle having a radius of 12 feet, Kroon being at the center, without reference to the shovel, and that the presence of the tool over his shoulder increased the area of danger to a circle having a radius of 14 feet, may it be said with any degree of certainty that there was in fact a causal connection between the shovel which he had been using in his work and his death? While legitimate inferences may be drawn from established facts an award may not be based on speculation and conjecture as to what might have happened. In Ginsberg v. Burroughs Adding Mach. Co., 204 Mich. 130, 137, 170 N.W. 15, 18, it was said:

'But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. If an inference favorable to the appellant can only be arrived at by conjecture or speculation, the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail.'

It must also be borne in mind that the burden of proof is on the plaintiff to show that the death of her son arose out of his employment, and that she is entitled to compensation as a dependent. This and other basic principles were recognized and expressly declared in Riley v. Kohlenberg, 316 Mich. 144, 148, 149, 25 N.W.2d 144, 145, as follows:

'Since by recent amendments to the workmen's compensation act injuries and deaths resulting from occupational diseases have been made compensable, many borderline cases, of which the instant case is typical, have been presented. In deciding such controversies it seems imperative that three principles be kept in mind: (1) The burden of proving a right to compensation is on the party asserting that right. Pucilowski v. Packard Motor Car Co., 278 Mich. 240, 270 N.W. 282; Veek v. Wesley Freight Co., 306 Mich. 485, 11 N.W.2d 213. (2) In awarding compensation to a plaintiff, the department may not indulge in the assumption of a mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 137, 170 N.W. 15; Marman v. Detroit Edison Co., 268 Mich. 166, 255 N.W. 750. (3) Workmen's compensation provided by the act is not intended to be either sickness, health, or life insurance or to provide benefits for employees suffering from ordinary diseases of life.'

See, also, Nightlinger v. Giant Super Market, Inc., 334 Mich. 90, 53...