Opinion
April 3, 1953 —
May 5, 1953.
APPEALS from judgments of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
For the appellants there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondents there was a brief by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by Oscar T. Toebaas.
A number of Jamaicans including Obediah Pusey and Noel Simpson were employed by Stokely Foods under work agreements made with the British West Indies Central Labor Organization. The employees were provided living quarters at the employer's plant. They were engaged to work in certain fields located at various distances from the city of Berlin. They performed no work at the plant. Under the arrangement made for their employment Stokely Foods was required to transport them to and from their place of work.
On August 16, 1949, the employees were engaged in picking corn in a field about six miles from the plant. About a half hour before quitting time a storm arose and the employees decided to return to the plant. It was the custom for the employees in case of storm to return to Berlin upon trucks furnished by the employer. The truck upon which they entered was a ton-and-a-half truck with platform and sides but without cover, the cab provided room for occupancy by three people. It was partially loaded with corn. Two of the Jamaicans entered the cab with the driver while the others including Pusey and Simpson entered the body of the truck. The truck was driven about three and a half miles when the downpour of rain and the water reaching the mechanism caused the engine to stall. The driver wiped the coil, proceeded forward a short distance when the "motor just quit." As the driver opened the cab door a bolt of lightning struck the truck and killed Pusey and Simpson. The nearest building was a quarter of a mile away; there were a signboard and a tree about 150 feet away and other trees about 300 feet distant from the truck. There was testimony that there were no objects in the vicinity of the truck when it stopped such as tall trees, poles, or buildings likely to attract lightning. On both sides of the highway were flat open fields. The truck was proceeding upgrade. The top of the sides was six feet nine inches above the ground and thirty-eight inches from the floor of the platform.
In separate proceedings had before the commission, in the circuit court and upon appeal, the facts and issues of law were presented and argued as though but one claim had been made. The commission found that the deaths of Pusey and Simpson were caused by injury arising out of their employment and ordered the payment of $2,500 into the state treasury in each case. Upon review by the circuit court for Dane county the findings and orders were set aside by judgment entered on September 2, 1952. The commission appeals.
Verner E. Suomi, an associate professor of meteorology at the state university, was examined at considerable length and in detail as to the cause and nature of lightning and as to other characteristics of an electrical storm. Among other things, he testified that lightning would be likely to strike the highest object in the vicinity; that the truck was attractive to lightning because it was higher than the surrounding area; that under the conditions existing lightning would have struck the highest point of the truck; that if he were a meteorologist and a truck driver at the same time and observed lightning in the distance and the probability that it would increase in intensity he would remove the men from the zone of danger upon the truck, and that if the men could get off the truck and slightly to the side of it they would be in less danger.
The employer relies principally upon Hoenig v. Industrial Comm. 159 Wis. 646, 150 N.W. 996, where an employee was engaged at work on a dam on the Fox river. It had been raining and the rain was accompanied by thunder and lightning. He was standing on a board walk twenty-four inches above the water level of the stream. He was struck by a bolt of lightning and killed. The commission denied the claim of the surviving widow. Upon review the order of the commission was affirmed. Applying the rule that the findings of the commission should not be disturbed where there is any substantial basis for them in the evidence this court affirmed the judgment.
In Newman v. Industrial Comm. 203 Wis. 358, 234 N.W. 495, an employee was engaged in assisting in the excavation of a cellar. There were intermittent showers, his clothing was damp and the ground was wet. A heavy shower came up and the employee with some of his fellows went under a pine tree and while there was struck by a bolt of lightning and killed. The commission ordered payment on account of his death and upon review the trial court refused to set aside the order. The order was affirmed and this court in discussing the Hoenig Case said (p. 361):
"It was there said that there was a finding of fact which could not be disturbed by the court under the well-established rule. Equally it must be considered a finding if the commission had found the other way as upon similar evidence in this case it did find."
Again the court said that it was bound by the finding of the commission.
In Nebraska Seed Co. v. Industrial Comm. 206 Wis. 199, 239 N.W. 432, the employee was engaged in working in an open field. An electric storm arose and he went for shelter to a building about forty rods distant from where he had been working. While there and shortly after he entered the building he was killed by lightning. The building was the only one within three quarters of a mile and located on land which was level for miles in all directions. The commission held that his widow was entitled to the benefit provided for in the Workmen's Compensation Law. Upon review and trial in the circuit court the award was confirmed. We affirmed the judgment of the trial court and among other things said (p. 201):
"The building into which he entered was so situated, and its height above the surrounding surface was such, as to increase the danger from lightning. It all resulted in an unusual risk of such an accident incidental to the employment."
The court concluded that the evidence sustained the findings of the commission.
The rule of these cases compels the conclusion that there was here an issue of fact for the commission. In view of what was said by the court in the Nebraska Seed Co. Case we must hold that the testimony of Professor Suomi supports the finding that the elevated position of the employees upon the truck subjected them to an increased danger from lightning.
By the Court. — Judgments reversed. Cause remanded with directions to reinstate and confirm the orders of the Industrial Commission.