Wells v. Robinson Construction Company

Decision Date10 December 1932
Docket Number5898
Citation16 P.2d 1059,52 Idaho 562
PartiesFAYE WELLS, Respondent, v. ROBINSON CONSTRUCTION COMPANY and STATE INSURANCE FUND, Appellants
CourtIdaho Supreme Court

WORKMEN'S COMPENSATION ACT-DEATH BY LIGHTNING-INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT-BURDEN OF PROOF-STIPULATIONS-EVIDENCE-JUDICIAL NOTICE.

1. For injury by lightning to be compensable, causal connection must exist between employment and injury (C. S., secs. 6213 et seq., 6217).

2. If workman pursuing his duties is exposed to greater danger from lightning or elements than are other persons in same locality, and is injured thereby, injury "arises out of and in course of employment" (C. S., sec. 6217).

3. Death of highway worker engaged in plowing and struck by lightning while holding plow handles held not to "arise out of employment" (C. S., sec. 6217).

4. Claimant had burden of showing that accident arose out of and in course of employment (C. S., secs. 6213 et seq., 6217).

5. Stipulation that highway worker was struck by lightning while holding plow handles did not authorize judge's additional findings inferring special hazard because plow was constructed of metal and drawn by horses or tractor.

6. Basing one fact inference on another is improper.

7. Under statute, courts judicially notice natural laws and may resort to appropriate reference books or documents (C. S sec. 7933).

8. In absence of proof of surrounding circumstances, court would not take judicial notice that highway worker holding handles of plow ran greater hazard from being struck by lightning than person not so engaged (C. S., secs. 6217, 7933).

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.

Appeal from judgment of district court reversing Industrial Accident Board denying award. Employer and surety appeal. Reversed.

Judgment reversed. Costs to appellants. Petition for rehearing denied.

Scatterday & Stone, for Appellants.

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 accident does not arise out of the employment and is not compensable. (Corpus Juris Pamphlet on Workmen's Compensation Acts, p. 77; 28 R. C. L., sec. 94; 27 Cal. Jur sec. 79; Schneider's Workmen's Compensation Law, 2d ed., sec. 343, p. 1141; Honnold on Workmen's Compensation, sec. 119, p. 428; Bradbury's Workmen's Compensation Law, sec. 29, p. 515; Netherton v. Lightning Delivery Co., (1927) 32 Ariz. 350, 258 P. 306; Wiggins v. Industrial Accident Board, 54 Mont. 335 170 P. 9, Ann. Cas. 1918E, 1164, L. R. A. 1918F, 932; Hoenig v. Industrial Acc. Com., 159 Wis. 646, 150 N.W. 996, L. R. A. 1916A, 339, 341.)

The court cannot take judicial notice of the fact that the place or conditions of the employment increased the hazard of death by lightning. (27 Cal. Jur. sec. 79; Wiggins v. Industrial Accident Board, supra; Netherton v. Lightning Delivery Co., supra.)

The burden of proof is upon the applicant to show that the position of the employee was more hazardous than that of others in the same community, or that, by reason of the employment, the risk was greater. (Alzina Construction Co. v. Industrial Com., (1923) 309 Ill. 395, 141 N.E. 191; Re Savage, 222 Mass. 205, 110 N.E. 283; McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N.W. 572; Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458.)

Chas. E. Harris, Geo. H. Crosby, Jr., and Kent M. Crosby, for Respondent.

Courts will take judicial notice of whatever is, or ought to be, generally known within the limits of their jurisdiction, or of things which are common knowledge to the majority of mankind; and this applies to appellate courts as well. (15 R. C. L. 1056, 1057, 1058; Rogers v. Cady, 104 Cal. 288, 38 P. 81, 43 Am. St. 100; 7 Ency. of Evid. 882; Hunter v. New York, O. & W. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L. R. A. 246.)

The doctrine that if the public, or a portion of it, is exposed to the same hazard as was the injured employee, then he, for that reason, may not recover, is not supported by the weight of authority, nor followed by the more recent decisions. Particularly if the employee is performing labor specially assigned to him by his employer and is engaged in that labor at the time of the accident. (Zeier v. Boise Transfer Co. et al., 43 Idaho 549, 254 P. 209; Re Harraden, 66 Ind.App. 298, 118 N.E. 142, 13 A. L. R. 975; State Road Com. v. Industrial Com., 56 Utah 252, 190 P. 544; Aetna Life Ins. Co. v. Industrial Com., 81 Colo. 233, 254 P. 995.)

"An injury occurs in the course of the employment within the meaning of the compensation act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment, or is engaged in doing something incident to it." (Granite Sand & Gravel Co. v. Willoughby, 70 Ind.App. 112, 123 N.E. 194; Rogers v. Davis, 39 Idaho 209, 228 P. 330; Honnold on Workmen's Compensation, p. 346, par. 105.)

VARIAN, J. Lee, C. J., and Budge, Givens and Leeper, JJ., concur. Budge, J., dissenting.

OPINION

VARIAN, J.

This is a proceeding under the Workmen's Compensation Act. On June 28, 1928, about 4 P. M., Merritt Wells was killed by lightning while employed in highway construction work about four miles west of Thomas' Fork crossing, in Bear Lake county. No testimony was taken before the Industrial Accident Board, which had before it an oral stipulation of facts, entered into by counsel for claimant and for defendants, at the hearing before one member of said board. The stipulation is as follows:

"It is hereby stipulated and agreed by and between the claimant, through her attorney, Charles E. Harris, and the defendants, through their attorneys, Scatterday & Stone, that Merritt Wells, Deceased, for whose death in this action claim is made, was 39 years of age; at the time of his death he was working on the public highway commonly known as the 'Oregon Trail,' on construction work for C. A. Robinson Construction Company, within Bear Lake County, Idaho, at a point about four miles west of Thomas' Fork crossing; that his death was caused by a stroke of lightning and that he was instantaneously killed; that at the time of the said death he was engaged in plowing in said construction work and had ahold of the handles of the plough at the time of said stroke; that he had been directed, together with others in the employ of this company, to do the particular piece of work in which he was engaged at the time of his death; that these instructions were given to him by the foreman or man in charge of the said construction company the day said accident happened and that he was engaged in this work under such instructions at the time of his death; that Merritt Wells, Deceased, began working for this company upon this particular piece of construction on May 3, 1928; that while in the performance of the said work as heretofore set forth for the said company said Merritt Wells was killed on the 28th day of June, 1928, by a stroke of lightning; that his death was instantaneous; that Faye Wells was the wife of said Merritt Wells and survives him and three minor children, named Doris Wayne Wells, born February 19, 1925, and Lois Elaine Wells, born August 1, 1927, and Merritt Wells, Jr. born the 17th of August, 1928; that said Merritt Wells, Deceased, was the sole support of the said Faye Wells and the said minor children; that they were living together as husband and wife at the time of his death; that the said Merritt Wells wages in such work was $ 4.00 each eight hours for six days a week, or that his average weekly wages were $ 24.00 a week; that C. A. Robinson Construction Company was insured with the State Insurance Fund at the time of this accident. It is stipulated and agreed that the funeral expenses were $ 120.00."

The board member found that "the personal injury by accident sustained by the deceased" did not arise out of his employment with his employer and denied compensation. On review, the full board found the facts in substantial conformity to the stipulation and ruled "That the death of the deceased, Merritt Wells, was not the result of a personal injury by accident arising out of his employment, etc.," again denying compensation. On appeal, the district court made additional findings, based upon the same stipulation of facts, reversed the action of the Industrial Accident Board, and awarded compensation to claimant. From this judgment the defendant contractor and its surety appeal.

Our law provides compensation for injuries by accident "arising out of and in the course of any employment covered" by it. (C. S., sec. 6217.) The cases interpreting the same or similar statutes, involving death or injury by lightning, so far as results indicate, are not in entire harmony. The facts differ in each case, but the general principle runs through them all that in order for the injury to be compensable there must be a causal connection between the employment and the injury. It must be shown that the workman was more exposed to injury by lightning by reason of his employment than were others, not so engaged, in the same vicinity. That is, if the workman, in pursuit of his duties under his employment, is exposed to a special or peculiar danger from lightning, or the elements--a greater danger than other persons in the same locality are exposed to--and an unexpected death or injury is sustained by lightning, or the elements, such injury constitutes an...

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