United States Fidelity & Guaranty Co. v. Rochester

• Decision Date: 09 January 1926
• Docket Number: (No. 11340.)
• Citation: 281 S.W. 306
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. ROCHESTER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

281 S.W. 306

UNITED STATES FIDELITY & GUARANTY CO. v. ROCHESTER et al.^*

(No. 11340.)

Court of Civil Appeals of Texas. Fort Worth.

January 9, 1926.

Rehearing Denied February 20, 1926.

Appeal from District Court, Clay County; Paul Donald, Judge.

Suit by the United States Fidelity & Guaranty Company against Mrs. W. C. Rochester and others to set aside an award of the Industrial Accident Board. From a judgment for defendants, plaintiff appeals. Affirmed.

Seay, Seay, Malone & Lipscomb, of Dallas, and Wantland, Dickey & Glasgow, of Henrietta, for appellant.

McBride & McBride, of Corsicana, and E. W. Napier, of Wichita Falls, for appellees.

CONNER, C. J.

On the 30th day of July, 1924, W. C. Rochester, while working for the Lone Star Gas Company, was killed by lightning. His widow, Mrs. W. C. Rochester, for herself and as next friend of her two minor children, Mary Lou and Willie C. Rochester, within the time and in the manner prescribed by law, presented her claim to the Industrial Accident Board at Austin, Tex., and an award was made by said board on the 16th day of October, 1924, in favor of the said Mrs. Rochester and children and her attorneys, as provided in the Workmen's Compensation Law (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91).

The appellant company, being dissatisfied with the award, gave due notice that it was unwilling to and would not consent to be bound by the award of the board, and within the time and in the manner prescribed by law instituted this suit in the district court of Clay county for a trial of the issues presented. The usual and customary form of petition was filed by appellant, to which the appellees answered by a general demurrer and a special plea, to the effect that on the 30th day of July, 1924, W. C. Rochester, while in the employ of the Lone Star Gas Company was engaged in excavating a 6-inch and a 2-inch pipe line at or near Lake Gage in Clay county, Tex., which pipe line was buried 18 inches under the surface of the ground; that he was using a steel shovel in removing the earth from said pipe line, and while so engaged was struck by a bolt of lightning, producing immediate death. They further pleaded the award of the Industrial Accident Board and prayed for its affirmance, and that appellees be granted a lump sum in settlement.

Appellant answered by a general demurrer and a special plea presenting the defense that on the 30th day of July, 1924, said W. C. Rochester was killed by an act of God, and was not at said time engaged in the performance of any duties which subjected him to a greater hazard than ordinarily applied to the general public, and that hence, under the terms of article 5246 — 82 of the Workmen's Compensation Act of the state of Texas, appellant was not liable.

The cause was submitted to a jury upon the following special issue: "Do you find from the preponderance of the testimony that W. C. Rochester, at the time of his injury, was engaged in the performance of duties that subjected him to a greater hazard from the act of God, responsible for the injury, than ordinarily applies to the general public?" To which the jury answered, "Yes." Upon this verdict judgment was entered in behalf of the appellees, in accordance with the prayer of their petition, and the United States Fidelity & Guaranty Company has duly prosecuted an appeal.

It is not denied that the deceased's employer, the Lone Star Gas Company, was a subscriber, as defined in our Workmen's Compensation Act, and hence that the appellant, the United States Fidelity & Guaranty Company, is liable under the terms of the Compensation Act for the amounts awarded below, unless relieved under the terms of article 5246 — 82 of our Revised Civil Statutes (Vernon's Ann. Civ. St. Supp. 1918). That article, so far as pertinent, reads as follows:

"The term `injury sustained in the course of employment,' as used in this act, shall not include: (1) An injury caused by the act of God, unless the employé is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public."

That the bolt of lightning which caused the death of the deceased falls within the definition of "an act of God" there can be no doubt. The vital question is whether at the time of deceased's death he was engaged in the performance of duties that subjected him to a greater hazard from the act of God referred to than ordinarily applies to the general public. As noted, the jury found that he was. But appellant denies this proposition and complains of the action of the court in overruling its general demurrer, and in refusing to give to the jury a peremptory instruction in its behalf, and urges a want of sufficiency of the evidence to sustain the finding of the jury.

The case is one of first impression in this state, so far as we have been able to discover, and the determination of the questions presented have not been without difficulty. Indulging in its favor all reasonable intendments, we think appellees' petition sufficiently stated the cause of action.

The witness H. T. Hamilton testified on the trial of this case that W. C. Rochester was killed on the 30th day of July, 1924; that at the time he was killed he was digging a ditch on the Lake Gage 6-inch pipe line, and that he with other men in the gang were stationed about 20 feet apart and were actively at work in removing dirt from the pipe line; that Mr. Rochester was struck by a bolt of lightning which resulted in his death; that the place where the men were working was a flat, open country, with the exception of a few trees which were something like 150 or 200 yards from the place where Mr. Rochester was working; that there were no buildings or other structures closer than 200 or 300 feet from where the men were working, but there was a cloud back to the southeast, a considerable distance from them; that there was no evidence of any lightning or a rain storm in the vicinity, and that, if it had become threatening, the men would have left the work and sought shelter; that, as a general rule, when a rain storm did blow up they would stop work and seek shelter; that the pipe line which was being excavated was about 18 inches under the surface of the ground; that the pipe line had been abandoned and was dry; that each of the men working on the job were using either steel bladed shovels or sharpshooters; that the men would station themselves about 20 feet apart and each would remove earth down to the pipe for his allotted 20 feet and then move down below the other men and begin a new section; that just prior to the time that Mr. Rochester was killed he had completed removing the earth on his 20-foot section and had moved down below the other men to begin a new section; that suddenly, and without any warning, a bolt of lightning struck Mr. Rochester, splitting the handle of the shovel with which he was working, and resulting in his death. The witness Dalton Harris testified to substantially the same facts, as did J. D. Gee and J. J. Grisson. These were all of the fact witnesses.

The appellees introduced as an expert the witness J. L. Kelley, who testified, among other things, that:

"A man standing over a pipe line or close to it, if the pipe line was steel, would attract electricity, and I think if a man had a steel shovel like that in his hands and he was over a pipe line he would be in a more dangerous position of electricity than he would be if he was standing away from it; that is, if he had those instruments in his hands."

This witness further testified that:

"Lightning begins in the elements and if it is close enough to the earth it would make a ground connection. It is a fact that lightning flows about through the elements depending on atmospheric conditions, the density of the clouds, and the amount of moisture in them. It will sometimes start out considerably high up in the sky with a high voltage, but will come down through clouds that vary in moisture and density and the amount of electricity in them likely will be reduced, but it seeks to travel through the sky along the lines of least resistance and hunt the ground somewhere."

This witness further testified, in substance, on cross-examination, that he would not think that any electricity would come from a pipe line buried some 18 inches in the ground; that he did not know whether the shovel deceased was using had anything to do with his being struck by lightning; that a man who went by a hardware store and bought a shovel and was walking down the street with it in his hand would be subjected to as much risk as the man out in the field, and that a man crossing a city street with pipes underground, or a farmer who was out in the field with a steel cultivator, or a plow, would have metal about him that lightning might strike; that any man who happened to be out in the elements and had an instrument with him that had some steel about it would be, to a certain extent, exposed to the danger of being struck by lightning.

Before proceeding further with our disposition of the case, we think we should dispose of appellant's objection in the court below, and here, to the qualifications of witness Kelley to testify as an expert. The record relating to this subject is substantially as follows:

"My name is J. L. Kelley. I am a resident of Clay county, Tex. I have had experience with electricity. The most of my experience has been along automobile work, motor and generator work, and wiring. I have been engaged in that line of work 15 years and along those lines I think I can qualify as an expert in electricity. I have studied electricity in a school or place of learning. I studied in an automobile school, a correspondence course and practical experience, and I have studied under electrical engineers. I attended Ray's School in Kansas City, but I did not take their complete course. I do not hold any...