Pigford Bros. Const. Co. v. Evans

• Decision Date: 28 November 1955
• Docket Number: No. 39766,39766
• Citation: 225 Miss. 411,83 So.2d 622
• Parties: PIGFORD BROTHERS CONSTRUCTION COMPANY and Western Casualty and Surety Company v. Willie Alice EVANS et al.
• Court: Mississippi Supreme Court

Page 622

83 So.2d 622

225 Miss. 411

PIGFORD BROTHERS CONSTRUCTION COMPANY and Western Casualty and Surety Company v. Willie Alice EVANS et al.

No. 39766.

Supreme Court of Mississippi.

Nov. 28, 1955.

Vardaman S. Dunn, Jackson, for appellants.

John B. Gee, Vicksburg, W. Arlington Jones, Hattiesburg, for appellees.

ETHRIDGE, Justice.

These workmen's compensation claims arise out of the death of an employee incurred during the 1953 Vicksburg tornado. The attorney-referee, the commission, and the circuit court held that the injury arose out of the employment. That also is our conclusion. Appellants are the employer of E. C. Evans, the deceased employee, and its compensation insurance carrier. Appellees are the alleged widow and three dependents claiming as the children and stepchild of Evans. Appellee Bessie Lee Hackett has cross-appealed from the denial by the circuit court of compensation to her as a 'stepchild'.

E. C. Evans was the employee of Pigford Brothers Construction Company, which was constructing at Vicksburg a concrete flood wall adjacent to the Yazoo Channel. Evans worked on a large machine called a dragline. His job as oiler was to oil the dragline for use on the project and to render assistance to the operator of the machine. On December 5, 1953, the construction crew of 10 to 18 men was pouring the first six feet of a concrete flood wall. The forms were in place, and the dragline was being used to unload the cement. A misting rain had begun, and Evans, as the dragline oiler, had the duty to place and keep a tarpaulin over the brake drums of this machine, in order to keep them dry and to prevent slipping. The brake drums were located on the dragline approximately six feet above the ground level. The dragline was situated between the flood-wall under construction and the edge of the water on the east side of the Yazoo Channel. About four to five feet east of the new wall then under construction was the old 'seawall', a concrete structure approximately 12 feet in height. About 20 yards east of the old 'seawall' was the property of Anderson-Tully Company, a sawmill plant. A short distance below the Yazoo Channel flows the Mississippi River. The channel is about 50 yards in width. Between the dragline and the Yazoo Channel and on southwesterly along the path of an approaching storm there were not any structures or other objects except willow trees growing upon an island between the river and the channel.

The dragline was situated upon a level embankment about 12 to 14 feet in width, and 25 feet above the level of the water. So the dragline, 6 feet in height, was being operated on top of this 25 foot high embankment.

A short time before the storm struck that vicinity, a rainfall had passed over the city, and between that time and that of the storm there was an intermittent rainfall. Evans' duties required him to climb upon the dragline to place and keep the tarpaulin over the brake drums. Immediately before he was killed he had climbed upon the dragline and put the tarpaulin back over the brake drums. This was one of his usual and customary duties, and he was then in and about his employer's business and performing those duties. At about 5:32 p. m., December 5, 1953, a tornado struck the Vicksburg area. It picked up a boat rudder from some point away from the premises on which Evans was employed, and cast it against his body on top of the dragline with such force as to sever his head and cause his immediate death.

The estimated wind velocity was about 200 miles per hour. Vicksburg had never been considered a storm area, and this wind was of unusual proportions for that vicinity. The width of the tornado ranged from 50 yards to about three-fourths of a mile. The tornado began its damage in this area about three miles southwest of the dragline's location, and travelled in a northeasterly direction from the State of Louisiana across the Mississippi River, a small wooded island in the river, and the Yazoo Channel, and struck the east bank of the channel upon which was situated this dragline. It, apparently, was the first object other than the woods and water which was struck by the tornado in this area. For five minutes the tornado passed through a large business and residential area in the City of Vicksburg. It killed 37 and injured 385 people. It destroyed many buildings.

First. Clearly Evans' death occurred while he was in the course of his employment, performing the necessary and usual duties of his job. We think also that his injury arose out of his employment. All of the courts agree that injury due to windstorm, as well as to lightning, earthquake, freezing, sunstroke and exposure to contagious diseases, arises out of the employment if the employment increases the risk of this kind of harm. 1 Larson, Workmen's Compensation Law (1952) Sec. 8.20. In other words, if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements, which increases the risk of injury and is within the sphere of the employment, such injury arises out of the employment. 58 Am.Jur., Workmen's Compensation, Sec. 260; 6 Schneider, Workmen's Compensation Text (1948) Sec. 1552, pp. 78-89; Malone, Louisiana Workmen's Compensation Law and Practice (1951) Sec. 193; Horovitz, Workmen's Compensation Law, (1944) pp. 99-107; Annotations in 13 A.L.R. 974, 25 A.L.R. 146, 40 A.L.R. 400, 46 A.L.R. 1218, 83 A.L.R. 234.

At the time Evans was killed he was performing the necessary duties of his job. The dragline was upon an embankment 25 feet above the water. This machine was 6 feet high. It had been raining, and in order to keep the brake drums dry and prevent slipping, Evans' job required him to place himself in this exposed and elevated position, with his head more than 31 feet above the water level. When the tornado came, the wind picked up a boat's rudder apparently lying somewhere in the vicinity of the river's waterfront. The rudder killed him while he was in this unusually exposed position. Clearly Evans' employment increased the risk of this kind of harm to him. Accordingly, under the universal rule his job was a contributing factor to his injury and death. They were connected in fact with his employment. Hence death arose out of his employment. The test is connection in fact with the employment, not whether it is foreseeable in advance, or apparent only in retrospect.

Since this accident manifestly comes within the universally recognized increased risk test, we do not need to consider at this time the other criteria which have been used by the courts in deciding compensation cases involving 'acts of God' and exposure to the elements, such as the actual risk doctrine, the positional risk test, and the contact-with-the-premises-exception, which are discussed so lucidly in Mr. Larson's textbook, supra, Sections 6 through 8.

Appellants claim that the position of the employee was no different from that of the general public and was common to the neighborhood, so no causal relationship exists. However, Evans' job placed him in a position of increased risk. Moreover, whether the risk is common to others in the vicinity is of little if any value in determining whether in fact the injury is connected with the employment.

No purpose would be solved by an extensive discussion of the many workmen's compensation cases dealing with employee injuries from windstorms. Some of them applying principles which are pertinent to this case are: American Shipbuilding Co. v. Michalski, 1928, 30 Ohio App. 80, 164 N.E. 123; Reid v. Automatic Electric Washer Co., 1920, 189 Iowa 964, 179 N.W. 323; Industrial Commission of Ohio v. Hampton, 1931, 123 Ohio St. 500, 176 N.E. 74; Maryland Casualty Co. v. Lilly, 1940, 62 Ga.App. 806, 10 S.E.2d 110; Arrington v. Goldstein, 1952, 23 N.J.Super. 103, 92 A.2d 630; Indrisano's Case, 1940, 307 Mass. 520, 30 N.E.2d 538; Central Illinois Public Service Co. v. Industrial Commission, 1920, 291 Ill. 256, 126 N.E. 144, 13 A.L.R. 967; Merrill v. Penasco Lumber Co., 1922, 27 N.M. 632, 204 P. 72; Scott County School Board v. Carter, 1931, 156 Va. 815, 159 S.E. 115, 83 A.L.R. 229; Globe Indemnity Co. v. MacKendree, 1928, 39 Ga.App. 58, 146 S.E. 46, affirmed in 1929, 169 Ga. 510, 150 S.E. 849; cf. Caswell's Case, 1940, 305 Mass. 500, 26 N.E.2d 328. For general discussions of so-called neutral risks arising from windstorms and other 'acts of God' see Larson, Workmen's Compensation in Mississippi, The First Five Years, 25 Miss.L.J. 109, 119-122 (1954); 3 N.A.C.C.A.Law Journal 43-52; 4 N.A.C.C.A.Law Journal 91-99; 12 N.A.C.C.A.Law Journal 75.

Second. Is appellee Willie Alice Evans entitled on this record to compensation benefits as the widow of E. C. Evans? The attorney-referee and commission denied them, but the circuit court reversed in that respect and made an award to Willie Alice. We think the circuit court was correct. On December 29, 1930, Evans married Lula Mae Whitten in a ceremonial marriage. They lived together in Lambert, Quitman County, Mississippi, for six years, until 1936, at which time they were separated. After their separation Lula Mae moved to Panola County, and in 1938 she started living with I. T. Armstead. She was living with him at the time of the trial. They had six children, and in 1951 she and Armstead obtained a marriage license and had a ceremonial marriage.

After the separation in 1936, E. C. Evans moved to Hattiesburg, in Forrest County, Mississippi, where he lived with his mother until he moved to Vicksburg in 1953. On February 21, 1953, Evans entered into a ceremonial marriage with appellee, Willie Alice Hackett, the claimant. Willie Alice had not been married before.

Following this marriage Evans and Willie Alice lived together in Vicksburg as husband and wife until his death on December 5, 1953, about nine months. They occupied a home in Vicksburg, and on October 29, 1953, a child was born to them, appellee Alice Ruth Evans. She, an...