Lickfett v. Jorgenson
| Decision Date | 07 February 1930 |
| Docket Number | 27,649 |
| Citation | 229 N.W. 138,179 Minn. 321 |
| Parties | HERMAN LICKFETT v. CHARLES JORGENSON AND ANOTHER |
| Court | Minnesota Supreme Court |
Certiorari upon the relation of Herman Lickfett to review orders of the industrial commission refusing him compensation for the death of his son by lightning while in the employ of respondents and denying a rehearing. Affirmed.
Time allowed to review award of compensation.
1. An order of the industrial commission for an award or disallowance of compensation cannot be reviewed on certiorari after the expiration of 30 days from date of service of notice thereof.
Death by lightning.
2. Death or injury by lightning is not compensable unless the employment accentuates the natural hazard from lightning.
Judicial notice of facts of science.
3. The courts cannot take judicial notice of such facts as are known, if at all, only by a specially informed class of persons.
No abuse of discretion in refusing rehearing.
4. The matter of the petitioner having a rehearing rested in the discretion of the industrial commission, and there was no abuse thereof in denying the application.
Evidence 23 C.J. § 1810 p. 60 n. 26.
Workmen's Compensation Acts -- C.J. § 67 p. 77 n. 98.
See note in L.R.A. 1916A, 43, 241, 347; L.R.A. 1918F, 937; 13 A.L.R. 977; 40 A.L.R. 401; 46 A.L.R. 1218; 53 A.L.R. 1084; 28 R.C.L. 806, et seq; 4 R.C.L. Supp. 1860.
Louis W. Martin, for relator.
Sam G. Anderson, for respondents.
Certiorari to review an order of the industrial commission denying the relator compensation and also an order denying a rehearing.
Relator seeks compensation as the father of Alvin Lickfett, the deceased employe. The employe, while engaged in his work in a road construction crew and driving a four-horse team along a highway, was killed by a stroke of lightning. The horses were unattached to any vehicle or machine. The employe was walking behind holding the lines. One horse was also killed. The grade was four or five feet high. There were no fences, poles, trees, houses or other things in the vicinity.
1. On October 16, 1928, the commission filed its order approving and adopting the referee's findings denying compensation. This was upon the theory that death was not proximately caused by any accident arising out of and during the course of the employment but on the contrary that it resulted from an act of God. Notice of the decision was served upon relator's attorney on December 20, 1928. Nothing was done within the next 30 days as provided by G.S. 1923 (1 Mason, 1927) § 4320, to have a review of the decision.
On May 15, 1929, relator filed a petition for a rehearing claiming that he had found valuable information and authority which by diligence he had not previously discovered. A hearing was had upon the application at which both parties were represented. The application was denied and this proceeding followed. The last order is the only one before us for review since the time in which the first order could be reviewed has expired as indicated.
2. It is the settled law in this state that death of an employe caused by lightning is compensable only when he is exposed to injury from lightning by reason of the employment which necessarily accentuates the natural hazard from lightning and the accident is natural to the employment. It is necessary that the employment expose the employe to the hazard in some way peculiar to the employment so that he does not stand in relation thereto the same as the public generally. See State ex rel. Peoples C. & I. Co. v. District Court, 129 Minn. 502, 153 N.W. 119, L.R.A. 1916A, 344; Dunningan v. Clinton Falls Nursery Co. 155 Minn. 286, 193 N.W. 466; Wiggins v. Industrial Accident Board, 54 Mont. 335, 170 P. 9, L.R.A. 1918F, 932, Ann. Cas. 1918E, 1164; Griffith v. Cole Bros. 183 Iowa 415, 165 N.W. 577, L.R.A. 1918F, 923; Klawinski v. L.S. & M.S. Ry. Co. 185 Mich. 643, 152 N.W. 213, L.R.A. 1916A, 342; Madura v. City of New York, 238 N.Y. 214, 144 N.E. 505.
3. Relator insists that the chance of being struck by lightning was enhanced by the employe's being with the large horses on the high roadway in the absence of other objects above the ground. The authority and information which he submitted with his application for a rehearing is a statement made by Mr. F W. Peek, Jr. of the General Electric Company of Pittsfield, Massachusetts, who it is said is an expert of great ability on the phenomena of electricity and lightning. The statement is contained in a brochure covering an address made by the author before the Franklin Institute at Philadelphia, and among other things he discusses the chances of being struck by lightning and in relation...
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