Mincey v. Dultmeier Mfg. Co.

• Decision Date: 06 April 1937
• Docket Number: 43746.
• Parties: MINCEY v. DULTMEIER MFG. CO. et al.
• Court: Iowa Supreme Court

272 N.W. 430

223 Iowa 252

MINCEY v. DULTMEIER MFG. CO. et al.

No. 43746.

Supreme Court of Iowa.

April 6, 1937

Appeal from District Court, Carroll County; R. L. McCord, Judge.

From an order of the district court affirming a decision of the Iowa industrial commissioner awarding compensation for the death of an employee, the defendants appealed. The opinion states the facts.

Reversed.

Miller, Miller & Miller, of Des Moines, for appellants.

Roy E Havens, of Logan, and Floyd W. Elston, of Woodbine, for appellee.

DONEGAN, Justice.

This is an action to enforce a claim for workmen's compensation. The claimant's husband, Walter Mincey, was employed by the Dultmeier Manufacturing Company at its factory in Manning, Iowa, where it manufactured wood implements and wood parts for implements. The building in which he worked was toward the south part of the premises owned by the defendant company and, to the north of this building and at a distance of approximately 60 feet therefrom, there was another building used by the defendant company as a warehouse for the storage of lumber and other materials. On the south end of the latter building there was an entrance to a passageway, which extended north inside the building, and at this entrance there was a sliding gate hung upon a metal track which extended along the top of the entrance. This gate was made of upright slats attached to a frame. On the south end of this building some little distance above and to the south of the track upon which the gate operated, there was a metal eaves trough which extended all the way across the end of the building, but had no downspout or other direct connection with the ground. At both the east and west sides of the entrance inclosed by the gate there were up and down posts of heavy lumber. On the 7th day of September, 1935, claimant's decedent, with other employees, had partaken of his lunch in this building on the northerly side of the premises and about 1 o'clock he was proceeding southward through the passageway with the intention of going out of this south gate, which was then closed, and proceeding across the open space to the south building where his work was to be done. As he approached this gate from the north and had reached a point about 1 foot from the inside thereof, and apparently was about to reach toward one of the up and down slats or posts of the gate, he was struck by lightning and instantly killed. Thereafter, the claimant, the wife of the decedent, filed her claim with the Iowa industrial commissioner asking for compensation under the Workmen's Compensation Act (Code 1935, § 1361 et seq.).

In their answer the defendants admitted that the claimant's decedent was an employee of the manufacturing company and that he was killed by being struck by lightning substantially as we have stated above, but they denied that his death arose out of and in the course of his employment with the manufacturing company, and denied that there is any liability imposed upon the defendants under the Iowa Workmen's Compensation Act. By stipulation, there was a hearing before the deputy industrial commissioner, acting as sole arbitrator, and, at the close of such hearing, the deputy industrial commissioner found that the claimant had failed to prove that the death of the claimant's decedent resulted from injury arising out of and in the course of his employment. A petition for review was filed by the claimant and, upon such review by the industrial commissioner, he reversed the finding of the deputy industrial commissioner and found that the injury resulting in the death of the claimant's decedent arose out of and in the course of his employment, and awarded claimant compensation in the sum of $11.42 a week for a period of 300 weeks. Appeal was taken by the defendants from the finding and order of the industrial commissioner to the district court of Carroll county, Iowa, which affirmed the finding and order of the industrial commissioner. From this order of the district court, the defendants appeal.

No complaint is made as to the finding of the industrial commissioner that the claimant's decedent was killed while in the course of his employment, or as to the amount of compensation awarded. The error here relied upon is that compensation should not have been awarded at all, because there is no evidence to support the industrial commissioner's finding that the death of claimant's decedent arose out of his employment.

Where, as in this case, death or injury results to an employee from a stroke of lightning or other act of the elements, which are frequently referred to as acts of God, the rule is well established by the great weight of the authorities that the work in which the employee is engaged must be such as to expose him to a greater danger than that to which other persons in the locality are exposed. The general rule is very well stated in 71 C.J. 757, as follows:

" In order that harm which results to an employee by reason of his exposure to the weather or natural elements may be compensable as an injury arising out of and in the course of his employment, the exposure of the employee by reason of his employment must be greater than that of other persons in that locality."

As sustaining this rule see 28 R.C.L. 806, § 94; Griffith v. Cole Bros., 183 Iowa, 415, 165 N.W. 577, L.R.A.1918F, 923; Wax v. Des Moines Asphalt Pav. Corp., 220 Iowa, 864, 263 N.W. 333; and numerous cases cited in footnotes to text above quoted. As applied to death or injury resulting from lightning, there is a further statement of the rule in 71 C.J. 758, wherein it is said:

" Harm resulting from lightning may be compensable as an injury arising out of and in the course of the employment, where the injured employee is by reason of his employment peculiarly exposed to risk of injury from this source; but where the employment does not expose an employee to the risk of injury from lightning in a greater degree than usual, harm resulting from being struck by lightning may not be compensable."

This rule has been adopted and applied in the following cases: Griffith v. Cole Bros., 183 Iowa, 415, 165 N.W. 577, L.R.A.1918F, 923; Alzina Construction Co v. Industrial Comm., 309 Ill. 395, 141 N.E. 191; Madura v. Bronx Parkway Comm., 206 A.D. 598, 201 N.Y.S. 639; Emmick v. Hanrahan Brick & Ice Co., 206 A.D. 580, 201 N.Y.S. 637; Wiggins v. Industrial Acc. Board, 54 Mont. 335, 170 P. 9, L.R.A.1918F, 932, Ann.Cas.1918E, 1164; Thier v. Widdifield, 210 Mich. 355, 178 N.W. 16; Klawinski v. Lake Shore & M. S. R. Co., 185 Mich. 643, 152 N.W. 213, L.R.A.1916A, 342; Hoenig v. Industrial Comm., 159 Wis. 646, 150 N.W. 996, L.R.A.1916A, 339; De Luca v. Park Commissioners, 94 Conn. 7, 107 A. 611; United States F. & G. Co. v. Rochester (Tex.Civ.App.) 281 S.W. 306; Netherton v. Lightning Delivery Co., 32 Ariz. 350, 258 P. 306; Lickfett v. Jorgenson, 179 Minn. 321, 229 N.W. 138; Deckard v. Indiana University, 92 Ind.App. 192, 172 N.E. 547; Nebraska Seed Co. v. Industrial Commission, 206 Wis. 199, 239 N.W. 432.

In his decision in review, the industrial commissioner, while not expressly ignoring this rule, apparently eliminates its application to the facts of this case and holds that, because the course pursued by the electric current, commonly referred to as lightning, was controlled by the intervention of human agencies, the death of claimant's decedent cannot be said to have resulted exclusively from an act of God. Apparently it was the thought of the industrial commissioner that, because of the intervention of human agencies, the course of the lightning was not directly from the electrically charged cloud to the ground, or through some natural object such as a tree, but that the discharge reached the ground over and because of a pathway created for it by the building, eaves trough, post, track, hinge, and slat on the gate or door; that, because of this human intervention, the course of the electric current was directed to the place where the claimant's decedent was located at that instant, and where he had a right to be in connection with his employment; and that, therefore, the hazard to which he was exposed was due to and arose out of such employment. The authority for this line of reasoning is given by the industrial commissioner as found in the definition of the term " Act of God" in 1 C.J. 1174, as follows:

" The most comprehensive definition of the term (Act of God) is any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected could have been prevented.

Human Agency Excluded. The principle embodied in all of the definitions is that the act must be one occasioned exclusively by the violence of nature and all human agency is to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the...