Wiggins v. Knox Glass, Inc.

• Decision Date: 24 February 1969
• Docket Number: No. 45214,45214
• Citation: 219 So.2d 154
• Parties: Otis A. WIGGINS, Claimant v. KNOX GLASS, INC., Employer, and Travelers Insurance Company, Carrier.
• Court: Mississippi Supreme Court

Page 154

219 So.2d 154

Otis A. WIGGINS, Claimant v. KNOX GLASS, INC., Employer, and Travelers Insurance Company, Carrier.

No. 45214.

Supreme Court of Mississippi.

Feb. 24, 1969.

Pyles & Tucker, Jackson, for appellant.

Daniel, Coker, Horton & Bell, John B. Clark, Jackson, for appellee.

RODGERS, Justice:

This is a workmen's compensation claim, and it involves the defense that the employee's injury was caused by 'an act of God,' since the claimant was injured as the result of a tornado.

The claimant, Otis A. Wiggins, filed his claim in the Mississippi Workmen's Compensation Commission against the Knox Glass Corporation, employer, and Travelers Insurance Company, its carrier. After the hearing, the attorney referee entered an order holding that the contention of the defendants that the injury was a result of an act of God was not applicable because of 'the increased risk' in which the employee was placed at the time of the storm. The order provided for additional compensation of temporary total disability, and temporary partial disability, together with medical expenses, but it refused the claimant's application for permanent disability based upon loss of wages due to physical disability under the wage-earning laws. The Workmen's Compensation Commission affirmed the order of the attorney referee, and the claimant appealed to the Circuit Court. The employer and its insurance carrier cross-appealed. On appeal, the Circuit Judge of Rankin County found prejudicial error, reversed the order of the Commission, and dismissed the claim. He held that the employee's injury did not 'arise out of the employment' but was the result of 'an act of God.' The employer, its insurance carrier, and the employee, claimant, have all appealed to this Court from the judgment of the Circuit Court. The employer and its insurance carrier contend that the judgment of the Circuit Court is correct; that is to say, the employee was injured as a result of 'an act of God.' The employee contends that the order of the Commission was proper as to the compensability of the claim, but was not correct as to the amount of compensation due to the claimant, Otis Wiggins.

The circumstances and facts from which this claim originated are as follows: On March 3, 1966, the employee, claimant, was engaged in his work at the Knox Glass Corporation plant near the City of Jackson, Mississippi. He was fifty-six years of age and had been employed by Knox Glass for eighteen years. He had gone to work at 4 P.M. and was working in a truck at the loading dock just outside the warehouse. The electric power went off, the lights went out, and it became dark. The claimant and other workers came out of the trucks they were loading in an effort to find the trouble. The claimant saw a funnel-shaped cloud rapidly approaching from the southwest. At first the claimant thought the cyclone would miss the area where he was located; however, when the funnel struck two large buildings nearby, the employee's foreman suggested that the men should get out of the building and get outside behind a concrete wall about four feet high at a place where the trucks backed up to dock.

The claimant and others had just gotten behind this part of the dock when the force of the cyclone struck the dock. The claimant was struck by some object, causing him to become unconscious. He was seriously injured and remained unconscious for four or five days. He suffered multiple injuries over his body, his right side, arm and head. He remained in the hospital for eight days, and remained at home for two months. He returned to the Baptist Hospital a second time on May 4. He had a fractured right arm, broken ribs, injuries to his head which caused a continuous headache, and a blood clot in his left arm which required vascular surgery. His liver was enlarged due to the trauma and post-traumatic hematoma, and there was excessive scar tissue on the liver. He had very litle grip in his right hand. The attorney referee found as a fact that the claimant was temporarily and totally disabled from March 4, 1966 until June 12, 1966; that he was discharged from medical care on November 4, 1966 'without any permanent disability'; and that he was receiving an average weekly wage of $86 at the time he was injured.

I.

The first question to be determined is whether or not the injury to the appellant, Otis A. Wiggins, was 'an act of God' or whether it 'arose out of and in the course of his employment.' It seems to be a general rule that 'injuries sustained by employees as a result of windstorms or tornadoes are not ordinarily compensable where such employees are not, as such, exposed to the risk of such harm to a greater degree than the public generally in the vicinity, but compensation may be had where the injured employee is by reason of his employment specially exposed to injury from such causes.' 99 C.J.S. Workmen's Compensation § 250 (1958).

Professor Larson, in 1 Workmen's Compensation Law § 8.00 (1968), points out that there are several tests used by the various courts to determine whether or not an injury arose out of the employee's employment in cases where the injury was the result of exposure to the fury of the elements. One of these tests in sometimes called 'actual risk of the particular employment'; for example: where one works in the sun until he has a sunstroke. Another classification is where the injury is directly attributable to an act of God but takes effect through contact with the premises where the employee is working; for example: where the wind blows a wall down upon the employee while he is engaged in his work. Another test is sometimes called the 'positional test'; for example: when one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident growing out of windstorm, lightning, etc.

There are many cases on the foregoing rules gathered in the following textbooks: 71 C.J., Workmen's Compensation, §§ 469-470 (1935); 99 C.J.S. Workmen's Compensation §§ 249-250 (1958); Larson, Workmen's Compensation Law § 8.00-8.43 (1958); Annot., 40 A.L.R. 400-404 (1926); Annot., 83 A.L.R. 234-240 (1933); 58 Am.Jur., Workmen's Compensation, § 260 (1948). We do not discuss the meny cases above collected because of the conclusion which we have reached in this case.

This Court has had before it two cases in which employees were killed or injured as a result of lightning and a tornado while they were engaged in work for their employers. In both cases we held that the employee was entitled to compensation.

In the case of Pigford Brothers Construction Company v. Evans, 225 Miss. 411, 83 So.2d 622 (1955), we held that where an employee climbed to an exposed position thirty-one feet above the river in order to put a tarpaulin over the brake drums of the machine on which he was working to keep in dry as part of his duty, and was killed by a flying object carried by a tornado, his injury was compensable as 'arising out of and in the course of his employment.'

In the case of Jackson v. Bailey, 234 Miss. 697, 107 So.2d 593 (1958), the facts show that an employee was killed by a bolt of lightning while standing by a truck in a rainstorm at a place where he had been told to wait for further instructions by his superintendent. This Court held that the injury was compensable and the Court based its finding largely upon the case of Mixon v. Kalman, 133 N.J.L. 113, 42 A.2d 309 (1945). In that case the Court said:

"It is common experience that those outdoors generally seek shelter, against both rain and lightning, as a thunderstorm approaches; but here the deceased servant's freedom of action for selfpreservation was circumscribed by the conditions of his employment." 234 Miss. at 706, 107 So.2d at 596.

Many of the states are moving toward the 'positional risk test' as pointed out by Professor Larson in 1 Workmen's Compensation Law § 8.12 (1968).

Our sister state of Louisiana has met the problem by adopting the positional risk test in the case of Harvey v. Caddo De Soto Cotton Oil Company, 199 La. 720, 6 So.2d 747, 751 (1942). In that case the Court said:

'We prefer to place our decision on what we believe to be a sound footing, that is-that the deceased, by reason of his employment, was required to be in a building which fell upon him; that his death was due to the fact that his employment necessitated that he be at the place where the accident occurred * * *.'

In Caswell's Case, 305 Mass. 500, 26 N.E.2d 328 (1940), the Supreme Court of Massachusetts had before it a case growing out of a hurricane which swept across New England causing great damage. A wall in the building where the claimant, employee, was working collapsed under the pressure of the wind, injuring the claimant. The Court pointed out that employees who slip and fall, and employees who are injured from other like accidents occurring to them while the...