Wells v. Robinson Construction Company, 5898

• Court: United States State Supreme Court of Idaho
• Writing for the Court: VARIAN, J.
• Citation: 16 P.2d 1059,52 Idaho 562
• Docket Number: 5898
• Decision Date: 10 December 1932
• Parties: FAYE WELLS, Respondent, v. ROBINSON CONSTRUCTION COMPANY and STATE INSURANCE FUND, Appellants

16 P.2d 1059

52 Idaho 562

FAYE WELLS, Respondent,
v.
ROBINSON CONSTRUCTION COMPANY and STATE INSURANCE FUND, Appellants

No. 5898

Supreme Court of Idaho

December 10, 1932

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).

[52 Idaho 563]

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 [16 P.2d 1060]

[52 Idaho 565] 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...