Taber v. Tole, 40599

• Citation: 313 P.2d 290,181 Kan. 616
• Decision Date: 03 July 1957
• Docket Number: No. 40599,40599
• Parties: Marion A. TABER, Appellee, v. William TOLE, d/b/a Tole Landscape Company, and Central Surety & Insurance Corporation, Appellants.
• Court: United States State Supreme Court of Kansas

Page 290

313 P.2d 290

181 Kan. 616

Marion A. TABER, Appellee, v. William TOLE, d/b/a Tole Landscape Company, and Central Surety & Insurance Corporation, Appellants.

No. 40599.

Supreme Court of Kansas.

July 3, 1957.

Syllabus by the Court.

1. With respect to an injury sustained by a workman resulting from exposure to natural elements, such as excessive heat, the general rule is that if the nature of his employment, that is, the work he is doing, subjects him to a greater hazard or risk from the elements than that to which he otherwise would be exposed, so that there may be said to be a causal connection between the conditions under which the work is performed and the resulting injury, the injury is deemed to be an accidental injury arising out of the employment within the meaning of the workmen's compensation act.

2. In a workmen's compensation proceeding, the record is examined and considered, and it is held: Under the facts and circumstances shown by the evidence, the trial court did not err in finding that the injury resulting from a heatstroke suffered by the workman was an accidental injury arising out of and in the course of the employment.

P. K. Smith, Wichita, argued the cause, and F. C. McMaster and William P. Higgins, Wichita, were with him on the briefs for appellants.

Otto J. Koerner, Wichita, argued the cause and was on the briefs for appellee.

PRICE, Justice.

This is a workmen's compensation case. The question involved is whether, under the facts and circumstances shown, injury resulting from a heatstroke is compensable. The commissioner and trial court held that it is, and the employer and its insurance carrier have appealed.

Claimant had lived in Independence all of his life. In the summer of 1953 he joined the army and served in various localities until May, 1955, at which time he received his discharge in Texas. He sought employment in Houston, and about the middle of July of that year returned to Independence. He was 22 years of age.

On August 1st, 1955, he went to work for the Tole Landscape Company of Independence. This company was engaged in the business of landscaping, trimming trees, taking care of yards and shrubs, and the like. On the morning of August 1st claimant, in company with other employees, drove to the nearby town of Humboldt to do some tree trimming and yard work at a residence there. The maximum temperature in Humboldt that day was 98 degrees. During the day claimant and his fellow workers trimmed trees, cleaned up debris, and did other work of like nature. Claimant complained of not feeling well and did not eat his lunch. During the day he and others drank cold water from a five-gallon can which they had brought along. Claimant advised the foreman that if he did not feel better the next morning he probably would not return to work.

On the next day, August 2nd, claimant and other employees worked on a job in Independence, trimming trees and cleaning up the yard. Part of the time claimant was up in the trees sawing off limbs, and the remainder of the time he was on the ground cleaning and raking. It was another hot day, the maximum temperature being 98 degrees. Some of the work was in the direct sunlight and some was in the shade. Claimant, like the other employees, drank from a water cooler and from a house hydrant during the day. He took a salt tablet approximately every hour. The work they were doing was 'hot and hard.' Claimant did not complain of feeling ill and ate his lunch. At quitting time, about 4:30 in the afternoon, he was driven to his home by a fellow employee, and apparently nothing was wrong with him. He went into his house and a short time later was found unconscious in the kitchen.

A local physician was called and claimant was removed to a hospital. His temperature was in excess of 108 degrees. He remained in the hospital at Independence for about two weeks and then was removed to the Veterans Hospital in Wichita where he remained for a considerable period of time, suffering from permanent nerve and brain damage resulting in partial paralysis. His condition was diagnosed by both the Independence and Wichita physicians as being the result of 'heatstroke.'

The record contains considerable evidence as to the seriousness of claimant's disability, but for our purposes need not be discussed in detail. He testified that he must have become unconscious while on the job on the day in question; that he did not remember being driven home and remembered nothing from about the middle of that afternoon until he 'awakened' in the hospital several days later. August 2nd, while extremely hot, was no hotter than it had been in Independence and in that area for about a month previous thereto. In other words, there really was nothing particularly 'unusual' about the temperature on the day in question. It was just plain 'good and hot,' a condition with which all living in the area during that time of year were familiar.

The trial court found that claimant suffered an accidental injury arising out of and in the course of his employment, and that the heatstroke and injury suffered by him were brought about by the work he was doing under the circumstances shown by the evidence--that is, the extreme temperature coupled with the fact he was not accustomed to hard manual labor under such conditions.

The employer and its insurance carrier contend the court erred in finding that claimant sustained personal injury by accident arising out of and in the course of his employment; that the findings are not supported by the evidence and are contrary...