Wiggins v. Industrial Accident Board

• Citation: 170 P. 9,54 Mont. 335
• Decision Date: 11 January 1918
• Docket Number: 4081.
• Parties: WIGGINS v. INDUSTRIAL ACCIDENT BOARD.
• Court: Montana Supreme Court

170 P. 9

54 Mont. 335

WIGGINS v. INDUSTRIAL ACCIDENT BOARD.

No. 4081.

Supreme Court of Montana

January 11, 1918

Appeal from District Court, Big Horn County; Chas. A. Taylor, Judge.

Proceeding under the Workmen's Compensation Act by Kate L. Wiggins for compensation for the death of Herbert L. Wiggins deceased. From a judgment reversing the decision of the Industrial Accident Board rejecting the claim, the Board appeals. Reversed and remanded.

S. C Ford, of Helena, and R. S. Mitchell, of Glendive, for appellant.

C. C Guinn, of Hardin, for respondent.

HOLLOWAY J.

On June 28, 1916, Herbert L. Wiggins, in the employ of Big Horn county engaged in work upon the public roads, was killed by lightning. His dependent mother presented to the Industrial Accident Board a claim for compensation, but the claim was rejected, and this action resulted. The trial court rendered and entered judgment in favor of the claimant, and the board appealed.

Section 16 of the Workmen's Compensation Act (Laws 1915, c. 96) provides that the industrial accident fund is liable for the payment of compensation to an employé, or in case of his death to his dependents, for "injury arising out of and in the course of his employment." The phrase quoted was incorporated in the English Compensation Act of an early date, and has been copied into the act adopted by practically every one of the states of the Union which has a statute dealing with the subject. It has been construed frequently by the British and American courts, and the authorities agree that, to warrant payment of compensation, the facts must disclose that the injury or death, as the case may be, resulted from (a) an industrial accident, (b) arising out of and (c) in the course of the employment. In other words, it is held that these terms are employed conjunctively, and not disjunctively, and that the burden of proof is upon the claimant to establish, by a preponderance of the evidence, that all three of these conditions are met. The authorities are too numerous to be cited. They will be found collected and reviewed in Ann. Cas. 1913C, p. 1, 1914B, p. 498, 1916B, p. 1293, and 1917C, p. 760.

It is conceded by the appellant board that the death of Wiggins resulted from injury received by him while in the due course of his employment. Our inquiry is thus limited to two principal questions and to questions subsidiary to one of them:

1. Can it be said that the death of Wiggins resulted from an industrial accident? We have heretofore indicated that the terms of our act are sufficiently comprehensive to include injury resulting from an act of God, and we adhere to that doctrine and answer the first inquiry in the affirmative. Lewis and Clark County v. Industrial Accident Board, 52 Mont. 6, 155 P. 268, L. R. A. 1916D, 628.

2. Did the death of Wiggins result from injury arising "out of" his employment? The words "out of" point to the origin or cause of the accident and are descriptive of the relation which the injury bears to the employment. Without attempting to formulate a rule which will include every injury within the meaning of this phrase, it is sufficient for the purposes of this appeal to say that if, by reason of the nature of the employment itself or the particular conditions under which the employment is pursued, the workman is exposed to a hazard peculiar to the employment under the circumstances, and injury results by reason of such exposure, then it may be said fairly that the injury arises out of the employment, or, stated in different terms, the workman must have been exposed by his employment to more than the normal risk to which the people of the community generally are subject, in order that his injury can be said to arise out of his employment. Workmen's Compensation Acts; A Corpus Juris Treatise, p. 77.

It is not contended that there was anything in the nature of the particular work upon which Wiggins was engaged that exposed him to extra hazard, but it is insisted that the conditions under which he was required to do his work at the time of the accident exposed him to more than the natural risk of being struck by lightning. He was required to work with a metal road grader at a time a thunderstorm was threatening. These facts appeared from an agreed statement. The trial court reached the conclusion that the deceased had been exposed to an abnormal risk, by a process indicated in an opinion expressed at the time judgment was rendered, as follows:

"In this case we are of the opinion that we are justified in taking judicial notice of the principle of the lightning rod, the natural attractiveness of metal, and especially of steel, for lightning, and we hold that under the facts in this case the deceased was exposed by reason of his employment about an iron and steel road grader to unusual hazard from lightning; that such employment increased the natural hazard from lightning to which all living creatures are exposed."

Assuming, without deciding, that in disposing of a case submitted upon an agreed statement of facts the court may supplement the record by matters of which it may properly take judicial notice, the question resolves itself into this: Was the court justified in taking judicial notice of the natural attractiveness of metals for lightning? Section 7888, Revised Codes, enumerates the matters and things of which the courts of this state may take judicial notice. The only provision of the statute which could possibly be invoked here is:

"Courts take judicial notice of *** the laws of nature."

In 15 R. C. L. 1127, it is said:

"Judicial notice will be taken of scientific facts which are universally known, and which may be found in encyclopedias, dictionaries, or other publications, as well as of scientific methods and instruments, but they must be of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. Here, as elsewhere, a judge may refresh his memory, if it is at fault, by resorting to any means for that purpose which he deems safe and proper. Examples of scientific matters of judicial cognizance are the laws of gravitation, the revolution of the earth, the change of the seasons, and the expansion of metals when heated and their contraction when cooled. The general nature and qualities of electricity and its

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