Netherton v. Lightning Delivery Co.

• Decision Date: 28 July 1927
• Docket Number: Civil 2595
• Citation: 258 P. 306,32 Ariz. 350
• Parties: MRS. OLLIE NETHERTON, Widow of FOREST NETHERTON, Petitioner, v. THE LIGHTNING DELIVERY COMPANY and HOME ACCIDENT INSURANCE COMPANY, Respondents
• Court: Arizona Supreme Court

258 P. 306

32 Ariz. 350

MRS. OLLIE NETHERTON, Widow of FOREST NETHERTON, Petitioner, v. THE LIGHTNING DELIVERY COMPANY and HOME ACCIDENT INSURANCE COMPANY, Respondents

Civil No. 2595

Supreme Court of Arizona

July 28, 1927

Original proceeding for writ of review to set aside award of the Industrial Commission in case No. M.- 3123, In re Forest Netherton. Award affirmed.

Proceeding under the Workmen's Compensation Act by Mrs Ollie Netherton, widow of Forest Netherton, opposed by the Lightning Delivery Company, employer, and the Home Accident Insurance Company, insurer. The Industrial Commission denied compensation, and the claimant brings an original proceeding for a writ of review to set aside the award.

Award affirmed.

McAlister, J., dissenting.

Messrs. Cox, Moore & Janson, for Petitioner.

Messrs. Chalmers, Fennemore & Nairn, for Respondents.

OPINION

LOCKWOOD, J.

Forest Netherton was killed by a stroke of lightning on the 4th of June, 1926, and Ollie Netherton, as his widow, presented a claim to the Industrial Commission for compensation under the statute. After hearing all the evidence offered and considering the matter, the commission on the sixteenth day of September denied any compensation, and Ollie Netherton has brought the award before us on a writ of review.

The situation is such that it is necessary we review the evidence in order to ascertain whether it supports the decision of the commission. The facts are undisputed. From them it appears that deceased at the time of his death was employed by the Lightning Delivery Company as a truck driver, and was engaged in driving one of the company's trucks loaded with cement, brick and lime, from Phoenix to the Arizona Quicksilver mine, some 113 miles north of Phoenix. At a point about nine miles from the mine a light rain began to fall and deceased stopped his truck and commenced to cover the load with a piece of canvas. While so engaged a flash of lightning occurred, which caused his instant death. The only person who saw the accident was D. F. Godfrey, a fellow-servant of the deceased, who was driving a similar truck. His testimony, so far as material, reads as follows:

"He (referring to Netherton) was standing in his truck. He had the big sideboards on and from here up was practically all that I could see (points from the breast up). I was on my truck covering up my cement. . . . It just started to sprinkle, and I seen him fall -- came a big clap of thunder and lightning, and I seen him fall, and I ran to him, and he was dead when I got to him. . . . It had not even sprinkled up the road yet.

"Q. When this occurred you were up in the mountains, were you? A. Yes, sir.

"Q. What elevation about? A. About 5,000, I think.

"Q. Were there any trees around that particular place? A. Not where we were.

"Q. . . . Was there anything about the truck, or contents of the truck, or its load that would in any way attract lightning? A. I don't think so.

"Q. You didn't notice anything else that would cause him to fall over at that time, outside the lightning, did you? A. No. sir."

It is admitted that deceased at the time of his death was engaged in the due course of his employment, but it is contended by respondents that the accident did not "arise out of" the employment.

The Arizona Workmen's Compensation Act (Laws 1925, chap. 83), like nearly all others, requires, in order that benefits be paid thereunder, an accident occur (a) "arising out of" and (b) "in the due course of" the employment. It is not sufficient that one of these elements exist; both must concur. The question then arises in every case whether the facts show this concurrence. The leading case in the United States defining the meaning of these two terms is In re McNicol et al., 215 Mass. 497, L.R.A. 1916A 306, 102 N.E. 697. This case has been cited and approved times without number by the American courts, and we adopt its language in Arizona as giving the best definition and explanation of the two phrases we have been able to discover. The court therein says:

"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." (Italics ours.)

The standard is plain and easily comprehended, the difficulty being in an application of that standard to the facts of each case. The question of injury by lightning is one which has not been before the courts as often as many other kinds of accident. We are, however, not without precedent to assist us. Counsel for petitioner has cited us to the following cases, in which an award was allowed for death by lightning: Aetna Life Ins. Co. v. Industrial Commission, 81 Colo. 2338 254 P. 995; De Luca v. Board of Park Com., 94 Conn. 7, 107 A. 611; State of Minn., etc., v. District Court, 129 Minn. 502, L.R.A. 1916A 344, 153 N.W. 119; United States Fid. & Guar. Co. v. Rochester (Tex. Civ. App.), 281 S.W. 306; Madura v. City of N.Y., 238 N.Y. 214, 144 N.E. 505; Emmick v. Hanrahan Brick & Ice Co., 206 A.D. 580, 201 N.Y.S. 637.

In all of these cases the board or commission passing on the facts allowed compensation for death by lightning, and the award was upheld by the courts. On the other hand, there are many cases where either the commission refused to allow compensation and its action was sustained, or the award when made in favor of the applicant was set aside by the courts. Typical of the class, where the denial of compensation was affirmed, are the following: Hoenig v. Industrial Commission, 159 Wis. 646, L.R.A. 1916A 339, 150 N.W. 996; Klawinski v. Lake Shore etc. Ry. Co., 185 Mich. 643, L.R.A. 116A 342, 152 N.W. 213; Kelly v. Kerry Co. Council, 42 I.L.T., 23 B.W.C.C. 194; Wiggins v. Industrial Accident Board, 54 Mont. 335, Ann. Cas. 1918E 1164, L.R.A. 1918F 932, 170 P. 9; Griffith v. Cole, 183 Iowa 415, L.R.A. 1918F 923, 165 N.W. 577.

Belonging to the second class, where compensation allowed was set aside, are Thier v. Widdifield, 210 Mich. 355, 178 N.W. 16; Alzina Con. Co. v. Industrial Commission, 309 Ill. 395, 141 N.E. 191; Gale v. Krug Park Amusement Co., 114 Neb. 432, 46 A.L.R. 1213, 208 N.W. 739.

The facts in each of these cases are different and it would be of little value to state them, but running through all of them we find the general principle of law which should apply in substantial agreement. It may be briefly stated thus: When the workman by reason of his employment, is more exposed to injury by lightning than are others in the same locality and not so engaged, the injury may be said to arise out of the employment; when, however, it appears that nothing in the nature of the employment has exposed him to any more danger than that shared in common by the general community, the injury does not arise out of the employment and is not compensable. To use an extreme illustration, it is a notorious fact that lightning is more apt to strike a very high structure standing out above its fellows than the surface of the ground. If a workman were engaged in repairing the summit of the Washington Monument or the Eiffel Tower during a thunderstorm, and were injured by lightning while so doing, it would very properly be said that the risk in such employment of injury by lightning was greater than that of the ordinary person in the cities of Washington and Paris. If, on the other hand, the ordinary clerk or messenger going about his master's business on the street were suddenly struck while in the midst of a crowd, it could not be said that his occupation increased his risk of being so struck over that of the ordinary pedestrian. Each case must therefore be considered on its own facts. But the standard for testing those facts is always the same to wit, Did the employment increase the danger?

This general rule is not seriously disputed by petitioner. She contends, however, that deceased's employment did increase the danger in that it required him to go from the altitude of Phoenix, some 1,100 feet, to an altitude of about 5,000 feet, and that the danger from lightning is far greater there than at the lower elevation. We do not think we can assume as a matter of judicial notice that such a difference necessarily increases the risk of being struck by lightning and there is no other fact testified to or even suggested by the evidence which would indicate that deceased's employment increased...