Wiggins v. Industrial Accident Board

MR. JUSTICE HOLLOWAY delivered the opinion of the court. 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, Chap. 96), provides that the industrial accident fund is liable for the payment of compensation to an employee, or in ease of his — 342 — 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 [1] proof is upon the claimant to establish, by a preponderance of the evidence, that the 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, Ann. Cas. 1914B, p. 498, Ann. Cas. 1916B, p. 1293, and Ann. Cas. 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 the principal question and to questions subsidiary to one of them: 1. Can it be said that the death of Wiggins resulted from an [2] 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, L. R. A. 1916D, 628, 155 Pac. 268.) 2. Did the death of Wiggins result from injury arising “out [3] 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 — 343 — 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 extrahazard, 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 [4] attractiveness of metals for lightning? Section 7888, Kevised Codes, enumerates the matters and things of which the — 344 — 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 manifold uses, the telephone, its nature, operation, and use, are likewise entitled to recognition under the same theory. * * * However, cognizance may not be taken of scientific matters of uncertainty or dispute, or of insufficient notoriety, even though learnedly discussed in scientific publications.” Is it a known law of nature that metals, such as iron or steel, [5] possess properties which perceptibly attract lightning and enhance the danger from lightning within the sphere of their influence, and, if so, to what source of information may one resort to refresh his recollection and confirm him in his knowledge of the existence of the law? The trial court apparently treated the attractiveness of metals for lightning as the principle which underlies the use of the lightning-rod, or, stated differently, upon the assumption that the lighting-rod attracts the lightning, the iron and steel composing the road grader possessed the same property, and because of their attractiveness for the lightning, their enforced use by the deceased increased his risk beyond the normal limit. As a result of scientific research covering a period of 150 years or more, certain fairly well-defined theories concerning the — 345 — action of lightning have been evolved. The discussion of them by scientists is elaborate and necessarily of a technical character. It would be impossible for us to reduce them to form available for presentation here, but an excellent summary of them is to be found in a brochure by H. H. Cochrane, a leading electrical engineer of this country, from which we quote the following: “I may say that such laws [the laws governing the action of lightning] as exist are the same as those applying to other electric currents or discharges. Such laws, however, are exceedingly difficult to apply in the case of lightning, on account of the great number of unknown and unknowable variables which exist in any particular case. Certain atmospheric conditions cause the mist of vapor which forms clouds, to become charged with electricity. The potential of this charge tends to increase as the particles of moisture increase in size and decrease in number. When the potential becomes sufficiently high, the charged cloud will relieve itself by discharging either to another cloud of lower potential, or to the earth. It is the latter kind of lightning only in which we are interested. “The character of such a discharge to earth depends upon the size of the cloud, its distance from the earth, the potential to which it is charged, the quantity of the charge, and the character of the path through the atmosphere in which the discharge takes place. The discharge may be oscillatory, with a frequency varying from a few thousand cycles per second up to several million cycles per second, or it may be a single direct stroke, with a current flowing in one direction only. In the latter case the impulse or wave of current will ordinarily have such a steep wave front that its characteristics will largely resemble those of the high frequency oscillatory discharge. “When the atmosphere in the path of the discharge is variable in its characteristics, in other words, if the stroke passes successively through atmospheric strata of high and low temperature, and of varying degrees of moisture, the potential gradient will be correspondingly variable, so that the breakdown of the atmosphere will occur by a step by step process. The potential — 346 — gradient in the atmosphere in close proximity to the cloud may be sufficiently high to cause this part of the atmosphere to break down as a preliminary step. The potential'of the cloud, having now advanced to a new point, will stress the atmosphere adjacent to the new point sufficient to cause another advance in the breakdown, and so the stroke will progress from point to point, until it finally reaches the earth, the action being similar to that of a quantity of water released on the top of a hill, which starts a small stream downward in the most available path, which stream turns from side to side in its course down the hill, always taking the easiest path, until it reaches the bottom. “This, I believe, is the most usual form of lightning stroke. A rarer form occurs when the atmosphere is practically uniform in character between a broad, flat cloud and the earth. In this ease the potential gradient between the cloud and the earth will be more nearly uniform, and no discharge will occur until the atmosphere throughout the entire course of the stroke is stressed to the breakdown point. The voltage required for this kind of a strobe is very much higher than that required for the class of stroke first described, and the severity of the stroke is. correspondingly greater. “If the earth were perfectly flat and uniform, the points at which lightning would strike would be determined entirely by the location of the charged clouds and the characteristics of the atmosphere intervening between the clouds and the earth. In general, the lightning would start from the lowest point on the charged cloud, and would follow the path of least resistance through the atmosphere to the earth. Where the earth is not uniform, due to either variable contour, or the existence of buildings, trees, poles, or other projections from the surface, or due to regions of good conductivity, caused by moisture, as compared with regions of poor conductivity, caused by dry sand or rock, the course of the lightning to the earth will be somewhat modified by these irregularities. This follows from the fact that the lightning always tends to take the path of least resistance. — 347 — “In all ordinary eases, however, the location and configuration of the storm clouds, and the more or less variable conductivity of the atmosphere, are by all means the predominating factors in determining where the lightning will strike, and all ordinary, natural, or artificial projections from the earth’s surface are of comparatively small importance. ’ ’ We may assume for present purposes that a lightning-rod properly adjusted to a building furnishes some protection against damage from lightning; but, so far as our research has gone, there appears to be no difference of opinion among the authorities that the lightning-rod is not employed because it attracts the lightning. From the articles in the standard encyclopedias and from the work of Sir Oliver Lodge, entitled “Lightning Conductors and Lightning Guards,” we deduce the following: The lightning-rod projecting above the building which it is intended to protect may be the object upon which the atmospheric breakdown occurs, and, being a good conductor of electricity, it will ordinarily conduct the discharge safely into the ground and relieve the building itself from danger. When electricity passes through a poor conductor, it generates intense heat. If there is no lightning-rod attached to a building, and the breakdown occurs at some projecting portion of the building, the heat generated by the passage of electricity through the building — a poor conductor — may, and usually does, cause damage. The atmospheric breakdown occurs at the weakest point — the place of maximum tension. If there are numerous projecting objects, such as lightning-rods, trees, etc., the brushes and glows become so numerous that the tension may be relieved and the entire discharge dissipated without violence or damage, and primarily this is the purpose which the lightning-rod is to subserve. But if the charged cloud descends too quickly or has too great a store of energy, the crash occurs notwithstanding the projecting points, and the service of the lightning-rod is then employed to conduct the discharge into the ground. Because projecting objects may occasion the atmospheric breakdown, trees, tall buildings and other projecting objects are more likely — 348 — to be struck by lightning than other less prominent objects, and it is upon this theory, we think, that compensation for injury from lightning was allowed in State v. Ramsey County Dist. Court, 129 Minn. 502, L. R. A. 1916A, 344, 9 C. C. A. 129, 153 N. W. 119, and in Andrew v. Failsworth Industrial Soc., [1904] 2 K. B. 32, and denied in Klawinski v. Lake Shore etc. R. Co., 185 Mich. 643, L. R. A. 1916A, 342, 152 N. W. 213, in Hoenig v. Industrial Com., 159 Wis. 646, L. R. A. 1916A, 339, 150 N. W. 996, and in Kelly v. Kerry County Council, 42 Ir. L. T. 23, 1 B. W. C. C. 194. The decisions are harmonious. The difference in the facts alone accounts for the contrary results. Rehearing denied February 11, 1918. The most diligent research on our part has failed to disclose any authority which supports the theory upon which this cause was decided by the court below; on the contrary, so far as they point to any conclusion respecting the subject, the authorities indicate quite clearly that the presence of the metal road .grader could not have had any perceptible influence upon the lightning, and did not tend to increase the natural hazard of the deceased’s employment. For this reason it cannot be said from this record that his death resulted from an accident arising out of his employment, as the term is used in our Workmen’s Compensation Act. The judgment is reversed and the cause is remanded to the district court, with directions to enter judgment for the defendant board. Reversed and remanded. Mr. 'Justice Sanner concurs. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.