I do not disagree with the rule of law announced in the majority decision. My objection is the application of that rule to the facts in the case at bar.
Paragraph 4 of the syllabus of the majority opinion states the law to be:
"If the employment exposes the employee to peculiar dangers and risk of being struck by lightning, more than others in the same locality are so exposed, and the employee is struck by lightning while in the discharge of his duties and sustains an accidental personal injury covered by the terms and provisions of the Workmen's Compensation Law, then he may recover compensation for such accidental injury."
By paragraph 6 of the majority opinion it is held that the State Industrial Commission is justified in taking judicial notice of scientific data.
However, it should be borne in mind that there is not one syllable of testimony in this record to show that the place where Mahon labored, or the place where he sought shelter and was injured by lightning, was any more exposed to the hazard of lightning than was any other place in the neighborhood, or elsewhere, for that matter. Nor is there any occasion to digress from the fact of the complete absence of such evidence, as is required to support the award, and endeavor to substitute therefor judicial notice of scientific data, for the simple reason that it is not shown that the Commission took judicial notice of anything.
Our law provides compensation for industrial accidents only: those growing out of the employment and caused by the hazards of the industry, or, in other words, compensation is afforded for personal injuries accidentally sustained. In the final analysis those accidents chargeable to the industry are borne by the industry and those injuries resulting from the forces of nature described in the common law as acts of God are wholly uncontrolled by men and are not so chargeable. Klawinski v. Lake Shore M. S. Ry. Co. (Mich.) 152 N.W. 213.
In order for a workman to recover for an injury caused by lightning, he must show "some causative connection between the injury and something peculiar to the employment, because 'out of' involves the idea that the injury is in some sense due to the employment, * * * a causative danger peculiar to the work and not common to the neighborhood." Griffith v. Cole Bros. (Iowa) 165 N.W. 577; Kelly v. County Council, 13 B. W. C. C. 194; Robson v. Blakely, 5 B. W. C. C. 36; Wiggins v. Ind. Ace. Bo. (Mont.) 170 P. 9; Thier v. Waddifield (Mich.) 178 N.W. 16; Alzina Const. Co. v. Indus. Comm. (Ill.) 141 N.E. 191.
The rule stated in the last-cited case is:
"The general rule in all these cases would seem to be that the employer cannot ordinarily be held liable to pay compensation for injury caused by force of nature which he cannot reasonably foresee and guard against, where the employee is no more subject to injury from such forces than others, but that the employer is liable where the work or method of doing it exposes the employee to the forces of nature to a greater extent than others in the community are exposed 1 Honnold on Workmen's Compensation secs. 117, 119. Bradbury on Workmen's Compensation (3rd Ed.) 660, 661; Corpus Juris Workmen's Compensation Acts, 77."
See, also, Netherton v. Lightning Delivery *Page 82 Co. (Ariz.) 258 P. 306, wherein the rule is stated:
"The facts in each of these cases are different and it would be of little value to state them, but running through all of them, we find the general principle of law which should apply in substantial agreement. It may be briefly stated thus: 'When the workman, by reason of his employment, is more exposed to the 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 injury does not arise out of the employment and is not compensable. To use an extreme illustration, it is a notorious fact that lightning is more apt to strike a very high structure standing out above its fellows than the surface of the ground. If a workman were engaged in repairing the summit of the Washington monument or the Eiffel Tower during a thunderstorm, and were injured by lightning while so doing, it would very properly be said that the risk in such employment of injury by lightning was greater than that of the ordinary person in the cities of Washington and Paris. If, on the other hand, the ordinary clerk or messenger going about his master's business on the street were suddenly struck while in the midst of a crowd, it could net be said that his occupation increased his risk of being so struck over that of the ordinary pedestrian. Each case must therefore be considered on its own facts. But the standard for testing these facts is always the same, to wit: Did the employment increase the danger?"
In Baker v. State industrial Comm., 138 Okla. 167,280 P. 603, this court held:
" 'Under C. O. S. 1921, section 7285, a compensable accidental injury must disclose from its circumstances the existence of two essential elements: it must have resulted 'in the course of employment and it must also have arisen 'out of' employment. The absence of either of these essential elements destroys the application thereto of the beneficent provisions of the Compensation Law.' Lucky Kidd Mining Co. v. St. Ind. Comm., 110 Okla. 27. 236 P. 600."
That holding was based upon facts showing an injury resulting from the violence of nature, disclosed in the second paragraph of the syllabus:
"An employee was returning from a place where he had performed a service covered by the conditions of his employment. And, when being met by a cyclone, he sought refuge in a building situated near the road he was traveling, the building was destroyed by a storm, and the employee was thereby injured. The peril of the employee at that time was no greater than that common to all persons within the territory of the storm. His employment neither caused nor contributed to the injury; therefore, the injury did not arise out of his employment; hence it was not compensable under the Workmen's Compensation Law of this state (Comp. St. 1921, section 7282, et seq., as amended."
As in the Baker Case pointed out, to hold that such an accident arose out of the employment, when the peril of the employee was no greater than that common to all persons within the territory of the storm, would be to make the employer an insurer against all injuries received in the course of the employment, when, in fact, such law limits recovery in addition to those growing out of the employment, whereas the phrase "out of * * * his employment" points to the origin or source of the injury, and presupposes the existence of a causal connection between it and the employment. To conclude otherwise would lead us far afield and beyond a liberal construction of our Compensation Act.
To conclude otherwise would be to permit the workman to enjoy privileges above those of the public generally, and in effect be insured against every sort of calamity, which is not intended by the statute. Farmers Gin Co. v. Cooper,147 Okla. 29, 294 P. 108.
I conclude, therefore, that where a workman by reason of his employment is more exposed to injury by lightning than are others in the same locality not so engaged, the injury may be said to arise out of the employment, but where there is nothing in the nature of the employment which exposes the workman to any more danger than that to which other persons of the community are subjected, such injury does not arise out of the employment and so is not compensable. In short, for the injury to be compensable, there must be an extra risk by reason of the employment. Industry is chargeable only with the burden resulting from the hazards of industry and unless such hazards are combined with the disturbed elements of nature so as to accentuate the hazards of the industry, the resulting injury cannot be held to arise out of the employment.
The Industrial Commission made no finding that Mahon's employment subjected him to an extra hazard of being struck by lightning nor would the record support such a finding. The peculiar facts here establish conclusively the contrary, for Mahon sought refuge in an abandoned house of the neighborhood, and it was there he was injured. Had a person of the neighborhood who was unemployed been in Mahon's place, such person *Page 83 would have been struck by the same bolt of lightning conducted by the same fence or otherwise.
From the Court of Appeals of Ireland comes the case of Kelly v. Kerry County Council, a decision in 1908, Butterworth's Workmen's Compensation Cases, vol. 1, 194, wherein Michael Kelly was shown to have been killed by lightning while working on a road clearing out gullets, choked by a thunder shower; the question was whether the accident arose out of the employment. It was found that "no evidence was offered to me that the position of these men on the road exposed them to any greater risk of being struck by lightning than if they had been working in a field or garden," and it was held that the accident was not one arising out of the employment, 42 Ir. L. T. 23.
In the case of Andrew v. Failsworth Ind. Sec., Ltd., 2 Kings Bench 32 (1904), it was held:
"Where the place and circumstances in which a workman is employed involve a greater than ordinary risk of injury by lightning, such an injury may be considered as caused by an accident arising out of his employment within the meaning of the Workmen's Compensation Act."
There the workman was a bricklayer and when injured was working on a scaffolding at a height of 23 feet above ground, and evidence there showed an exposed position in which the hazard was increased in wet weather. It was shown that elevation constituted a defined point at which a discharge would more likely occur. Therein it was pointed out that the case of a workman being struck by lightning while in the course of his employment, generally speaking, was a typical illustration of an accident not arising out of the employment, "but, on the contrary, prima facie an instance of something arising altogether outside it. * * *" Such illustration is the case at bar. There was no evidence that the workman here was more exposed than would have been some other of the community working in a field or garden or sitting in the house where the injury occurred.
Therefore, I would hold that the risk on account of employment was no greater than was the hazard common to citizens of the community not so employed. The injury did not arise out of the employment.
Note. — See under (1) annotation in L. R. A. 1916A, 41; 20 A. L. R. 320; 28 R. C. L. 802-804; R. C. L. Perm. Supp. p. 6229. (2) L. R. A. 1916A, 43, 241, 347; L. R. A. 1918F, 937, 938; 13 A. L. R. 977; 53 A. L. R. 1084 et seq.; 28 R. C. L. 806; R. C. L. Perm. supp. p. 6235.