Mixon v. Kalman.

• Decision Date: 19 April 1945
• Docket Number: No. 3.,3.
• Citation: 133 N.J.L. 113,42 A.2d 309
• Parties: MIXON v. KALMAN.
• Court: New Jersey Supreme Court

133 N.J.L. 113

42 A.2d 309

MIXON

v.KALMAN.

No. 3.

Court of Errors and Appeals of New Jersey.

April 19, 1945.

Appeal from Supreme Court.

Proceedings under Workmen's Compensation Act by Josephine Jackson Mixon, claimant, opposed by Al Kalman, trading as Central Wrecking Company, employer, to recover for the death of claimant's husband. From a judgment of the Supreme Court, 131 N.J.L. 457, 37 A.2d 109, reversing a judgment of the court of common pleas which affirmed an award to claimant, claimant appeals.

Judgment of the Supreme Court reversed, and judgment of the Common Pleas affirmed.

PARKER, Justice, and WELLS, Judge, dissenting.

Albert N. Shahadi, of Atlantic City (Vincent S. Haneman, of Atlantic City, of counsel), for appellant.

Bolte, Miller & Repetto, of Atlantic City (Augustine A. Repetto, of Atlantic City, of counsel), for respondent.

HEHER, Justice.

This is a proceeding under the Workmen's Compensation Act; R.S. 34:15-7 et seq., N.J.S.A. On July 29, 1942, the workman was instantly killed by a bolt of lightning while in the course of his employment; and the question is whether, on the facts as found by the Supreme Court, the accident arose out of the employment within the purview of the statute. If it be resolved in the affirmative, there was error in matter of law in the Supreme Court's reversal of the judgment in favor of the deceased servant's dependents.

Defendant was then in the house-wrecking business; and for some eight years prior to the fatal mishap, the workman had been in his service as a laborer. The shaft of lightning struck the workman while he was engaged, at the direction of the master, in separating the sections of several lengths of four-inch soil pipe by burning the lead out of the joints. Rain fell during the storm. There was an open ground fire in an open storage yard in the possession of the master; and the burning of the lead was done by placing the pipe horizontally on the fire. A rake composed of metal tines and a wooden handle was used by the workman to remove the pipe from the fire. During the course of the storm, or shortly thereafter, he was found lying prostrate, with the rake in hand, 10 or 12 feet from the fire. The hair ‘over his forehead’ was burned; he was ‘slightly burned just over the stomach-just below the diaphragm’; and from there he ‘was burned down to the pubic arch.’ His lower right leg was burned ‘very slightly’; and his underwear had ‘multiple perforations,’ also caused by burns.

The evidence reveals a contrariety of scientific view as to whether these burns signify that the bolt struck the workman directly on the head or entered the body via the rake, with the metal tines and the wet handle serving as a conductor through contract with the metal pipes lying on the ground. The Supreme Court rejected the latter hypothesis. The finding was, in accordance with the expert opinion adduced by the master, that the electrical discharge struck the workman's head, and that neither the metal pipe nor the rake was a contributing factor. The court invoked the general rule of interpretation that, unless the injured servant was, by reason of the employment, subject to a greater hazard than was common to those in the locality, the accident cannot be classed as one arising out of the employment. We are, of course, concluded by the findings of fact made by the Supreme Court in respect of these variant professional opinions. Appellant's counsel is in error in supposing, as he does, that the Supreme Court was bound by the factual conclusions of the court of common pleas. On such reviews, the Supreme Court is also under a duty to find the facts. Bollinger v Wagaraw Building Supply Co., 122 N.J.L. 512, 6 A.2d 396; Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 6 A.2d 213; Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 189 A. 662; Anderson v. Federal Shipbuilding & Dry Dock Co., 118 N.J.L. 55, 191 A. 455. But it is fundamental that findings of fact made by the Supreme Court on conflicting evidence, or on uncontroverted evidence reasonably susceptible of divergent inferences, are not reviewable on error. Lebits v. General Cable Corporation, 112 N.J.L. 381, 170 A. 612; Kovalchuck v. Simpson & Brown, 117 N.J.L. 400, 189 A. 89.

Where the witnesses of proved experiential capacity differ as to scientific principles, and the deductions to be drawn from the circumstances, the subject matter can hardly be said to be of such general scientific belief as to justify judicial notice. But we may reasonably assume the following as proved scientific truths: National lightning is the visible flash which accompanies an electric discharge between two clouds or between a cloud and the earth, usually to the earth. The discharge occurs through the pressure of accumulated electricity in the cloud; and it takes the shortest path to the ground. The discharge is to a projection above the earth's surface, rather than to the ground itself. This is the principle of the ‘lightning rod.’ Rain and certain ‘lightning conductors' discharge the electricity quietly to the earth. When the electrically charged cloud passes near another cloud or a projection from the earth, the electrical discharge takes place. And there was testimony, seemingly unchallenged, that where the ‘projection’ is a man six feet tall, there is a ‘protected area around the point where he stands of some twelve feet radius,’ in which, ‘it is almost certain,’ nothing will be struck. We accept this as the factual situation, as did the Supreme Court; and we are of the view that the fatality was the result of an accident which arose out of the employment.

Whether a given case is within the principle of the statute is often a very difficult question; and this is so here. The statutory formula will not automatically resolve every case. So far as we are aware, there is no case in this state which considers death or injury by lightning in relation to this provision of the compensation act; and we shall therefore have recourse to English case law, for the English Compensation Act is the prototype of ours. It is a mixed question of law and fact. The difficulty is not with the principle, but rather with its application to the particular circumstances.

An ‘accident,’ in the legislative view, is an unlooked for mishap or untoward event which is not expected or designed as respects the workman himself. And an accident arises out of the employment if it ensues from a risk reasonably incident to the employment, i. e., such as belongs to or is connected with what the workman has to do in the fulfillment of his contract of service. Such a risk may be either an ordinary one, directly connected with the employment, or one extraordinary in character, indirectly connected therewith because of its special nature. If the danger was one to which the workman was exposed because of the nature, conditions, or obligations of the employment, the accident arose out of the employment. The service is then a contributing proximate cause; the injury is traceable to a hazard of the employment. If the employment was one of the contributing causes without which the accident would not have happened, the statutory language is satisfied. These are settled principles of exposition in this state. Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 25 A. 2d 894, 139 A.L.R. 1465.

It is not a conclusive test that the danger is common to all, whether in or out of the employment. A risk incident to the performance of the servant's work may include a risk common to all mankind. The peril may be normally incident to the service, and yet be one faced by members of the public; or it may be an abnormal risk and therefore incident to the performance of the work. Russell, L. J., in Lawrence v. George Matthews, Ltd. (1929) 1 K.B. 1, 18; Buckley, L. J., in Pierce v. Provident Clothing and Supply Company, Ltd. (1911) 1 K. B. 997, 1003. As respects collectors, canvassers, railway guards, and so on, risks of the streets and railway passenger transportation are examples of the first class. They are risks inherent in the nature of the employment; and it is quite immaterial that the danger is also one shared by members of the public. Dennis v. A. J. White & Co. (1917) A. C. 479. Liability for accidents arising from the ‘ordinary risks of the streets and public places proceeds upon the ground that where in the course of the man's employment he has to incur the risks of such accidents, personal injury caused by them arises out of the employment.’ Sankey, L. J., in Lawrence v. George Matthews, Ltd., supra.

However, it has been the generally accepted rule, with certain qualifications, that where the accident is the result of the forces of nature, it is necessary to prove that the workman's position in the course of his employment specially exposed him to the general risk. In Thom or Simpson v. Sinclair, (1917) A.C. 127, 142, Lord Shaw says: ‘In short, my view of the statute is that the expression ‘arising out of the employment’ is not confined to the...