ON APPLICATION FOR REHEARING.
CARVER, J.In an able brief for rehearing, defendant’s counsel urge that this court as well as the District Court
“ignored the fundamental principle of workmen’s compensation that as a basis of liability there must be some causal relation between the employment and the accident, and that, adopting a loose dictum construing the statute as a kind of insurance, the court had gone beyond the limit of reason and construed the statute in this case not only as a species of particular insurance within the limitations of the statute but as a general accident and life insurance ;• the only relation between the death and the employment being that the deceased was on the payroll.”
I.
We do not mean to hold that the statute is a general accident and life insurance provision requiring no relation between the accident and the employment beyond the fact that the deceased was on the payroll. We think the death in this case compensable, though, because, as we appreciate the law and the facts, the conditions to which Gasca’s employment subjected him, increased the risk from lightning and, *490under the authorities, we think this a sufficient causal connection between the employment and the accident.
In counsel’s brief they say very little about lightning cases, but annexed to their brief is a carbon copy of the decision of the Court of Appeals of the state of New York in the case of McCarter vs. LaRock, 212 N. Y. App. Div. 843, 207 N. Y. S. 872.
This decision holds that an employee at work on a building being erected by his employer and injured by flying fragments of an exploding shell which had been preserved on the adjoining premises as a souvenior of the war was not entitled to compensation.
The court holds that there was nothing more in the case than the mere location of' the employee in the pathway of the accident which was entirely disconnected from his employment, and holds, further, that, in order to be compensable, there must be in addition to this some causal relation.
The decision was rendered by Chief Justice Hiscock and concurred in by three other justices; two others dissented and one was absent. Justice Hiscock is the same judge who rendered the decision in the Madura case, hereinafter mentioned, wherein all the justices concurred.
A careful examination of the decisions in the twelve ' lightning cases examined by us makes it apparent that notwithstanding the diversity of conclusions arrived at there is substantial agreement in nearly all the cases as to the proper governing principle.
Those cases are as follows:
Box vs. Pig Pine Lumber Co., Ltd., No. 1674 on the docket of this court.
Andrew vs. Fallsworth Indust. Soc., 2 K. B. 32, 6 W. C. C. 11;
Kelly vs. Kerry County Council, 1 B. W. C. C. 194, 42 Ir. L. T. 23;
State vs. Ramsey Co. Dist. Ct., 129 Minn. 502, 153 N. W. 119; L. R. A. 1916A 344;
Klawinski vs. L. S., etc., R. Co., 185 Mich. 643; 152 N. W. 213; L. R. A. 1916A 342;
Koenig vs. Indust. Comm., 159 Wisc. 646; 150 N. W. 996; L. R. A. 1916A 339;
DeLuca vs. Park Commrs., 94 Conn. 7, 107 Atl. 611;
State Road Commn. vs. Indust. Commn. (Utah), 190 Pac. 544;
Wiggins vs. Indust. Acci. Bd., 54 Mont. 935; 170 Pac. 9; L. R. A. 1918F 932;
Thier vs. Widdifield (M-ich.), 178 N. W. 16;
Griffith vs. Cole, 183 Iowa 415; 165 N. W. 577; L. R. A. 1918F 923;
Madura vs. City of New York, 238 N. Y. 214, 144 N. E. 505.
In the DeLuca, Madura and Box cases and in State vs. Ramsey County District Court, the persons killed were under trees; and in Andrew vs. Fallsworth, he was working on a scaffold twenty-three feet high.
In the Koenig case he was working on a dam.
In the Kelly case he was picking stones and clearing gutters.
In State Road Commn. vs. Indust. Commn. he had left the road where he had been working to go to a house for shelter and was killed before reaching there.
In the Wiggins case he was w’orking on a metal road grader.
In the Klawainski and Thier cases they were in. barns.
In the Griffith ease he was sitting in a tent.
In the three tree cases and the scaffold case it was held that the accidents arose put of the employment and compensation Was allowed, except in State Road Comm., vs. Industrial Comm., where the accident Was held not to arise out of the employment. but compensation allowed because *491the statute did not require that it should so arise.
In the Griffith case the ground of the decision was, in part, the theory that lightning was the act of God.
In the other cases where compensation .was disallowed, the ground of the decision was, w'e think, that the situations of the workmen did not, as a matter of fact, expose them to any special risk from lightning.
In' other words, in most if not all ■ the .cases the crucial question was one of fact. If in a particular case it was found that the situation of the workman because of the employment increased the risk from lightning, there was liability; if it did not, there was none.
In 'thé Madura case the decedent was working on a parkway when a thunder storm arose. Being directed by his foreman to remain until after the storm in order to perform various duties, he sought shelter under a tree, there being no other provision for shelter made by the employer, and while standing there he was struck by lightning and killed. The Industrial Board ’found that his death was the result of injuries- arising out of his employment, which finding the appellant urged was erroneous because the danger of being struck by lightning was common to everybody in that vicinity and therefore not a risk specially attributable to the employment of the decedent for which an awiard could be made. The Court of Appeals sustained ■the finding of the Industrial Board. The court says:
“The only question then is whether, as the result of his employment, which continued while he sought shelter, he was exposed to any unusual risk. Matter of Katz vs. A. Kadans & Co., 232 N. Y. 420; 134 N. E. 330; 23 A. L. R. 401.
“We think that, as the result of judicial knowledge, which may be taken of scientific facts, the Industrial Board was permitted, without expert evidence, to find as it did by implication, and that we are permitted to say that he was. It is a matter of widespread scientific belief and declaration that a wet tree is a ready conductor of a current of electricity, and that a person standing under such a tree is exposed to a degree of danger which does not confront one in the open spaces of a highway or field. Chiulla De Luca vs. Bd. Park Comm’rs of City of Hartford, 94 Conn. 7, 107 Atl. 611. This scientific belief •is so widespread that we think the,»Industrial Board had the right to take notice of it, without testimony, in deciding that this accident was the result of a special risk incidental to the employment of the decedent. Jackson vs. Wisconsin Tel. Co., 88 Wisc. 243; 60 N. W. 430; 26 L. R. A. 101; Star vs. South Bell Tel. Co., 156 N. C. 435, 72 S. E. 434. If we are correct in this, then certainly there was evidence to sustain the finding of the Industrial Board, assuming that we are permitted to consider that question.
“Accidents resulting from lightning have been the subject of conflicting decisions. But in the cases which have held that an award should not be made for death resulting from such a cause, there has been quite uniformly a finding of fact that there was not any unusual risk of such an accident incidental to the employment, and that therefore the accident could not be charged to the latter, or said to spring out of it. Kelly vs. C. C., 1 B. W. C. C. 194; Wiggins vs. Industrial Accident Bd., 54 Mont. 335, 170 Pac. 9; L. R. A. 1918F 932; Ann. Cas. 1918E 1164; Koenig vs. Industrial Commn., 1159 Wis. 646; 150 N. W. 996; L. R. A. 1916A 339; Klawinski vs. Lake Shore & M. S. Ry. Co., 185 Mich, 643; 152 N. W. 213; L. R. A. 1916A 342.
“On the other hand, it has been held in several cases, as is being held here, that there sprang from the employment in which the workman was engaged a special risk of being struck by lightning, and that, therefore, compensation should be awarded. Andrew vs. Failsworth Ind. Soc., Ltd., 6 W. C. C. 11; State ex rel. People’s Coal and Iron Co., District Court of Ramsey County, 129 Minn. 502; 153 N. W. 119; L. R. A. 1916A 344; Chiulla DeLuca vs. Bd. Park Com’rs, supra.”
In the DeLuca case, supra, the court said:
*492“It is clear that the compensation commissioner had the power to take notice of scientific authority and dicta in reaching the conclusion complained of.
“We no not decide that there'is greater danger under a tall tree in a thunder shower than in other places, but we have no hesitation in holding that the commissioner did not find this decisive fact with-out substantial evidence.
“Thus in Appleton’s American Encyclopedia, Yol. X, .p. 463, it is stated that: ‘Dangerous is it therefore to take shelter under a tree during a thunder gust.’
“In the last edition of the Americana (Vol. XII), under the title ‘Lightning,’ the writer says that: ‘Fatalities are everywhere increased by the tendency to seek .shelter from the rain when caught in a storm; and these isolated shelters, as trees, barns, monument buildings in public parks, etc., are among the most liable to be struck.’
“In the Encyclopedia Britannica, Vol. II, (11th Ed.), p. 869, par. 35, under the title, ‘Atmospheric Electricity,’ the writer says: ‘The fact that a considerable number of people sheltering under trees are killed by lightning is generally accepted as convincing proof of the unwisdom of the proceeding. When there is an option between a tree and an adjacent house, the latter is doubtless the safer choice.’
“See, also, Paul Burt’s ‘First Steps in Scientific Knowledge,’ p. 52.
“In Harper’s Magazine, Vol. XLI, p. 33, a tall tree is portrayed with electricity flowing from the highest point of the tree to the ground. This illustration is designated, ‘The Natural Lightning Rod.’ This illustration appears in an article entitled, ‘The Mysteries of a Thunder Shower,’ which was written by Jacob Abbott, a famous juvenile writer and educator.
“To repeat: The compensation commissioner-has found that: ‘There is clear preponderance of scientific authority to the effect that there is greater danger under a tree or in the open than when protected in a house.’
“This finding should stand, as it is not contrary to reason and is consistent with the evidence.
“The remaining reasons of appeal present the claim that, as a matter of law, under no circumstances can death by lightning constitute a personal injury for which an allowance can be made under our Compensation Act.
“If the place under the tree were the more dangerous, the fact that the deceased chose it as a place of refuge from the storm' and that he was injured at this place does not prevent recovery. The act of seeking and obtaining shelter arose out of, that is, was within, the scope or sphere of his employment and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from a violent storm in order that he might be able to resume work when the storm was over was not only necessary to the preservation of the ■ deceased’s health, and perhaps his life, but was incident to the deceased’s work, and was an act promoting the business of the master. L. R. A. 1916A, 348.
“See, also, Richards vs. Indianapolis Abattoir Co., 92 Conn. 277, 102 Atl. 605, where it is said that:
“ ‘The plaintiff “was injured while on duty in his working hours, when waiting for an opportunity to continue his service of employment. The accident occurred when the plaintiff was at a place where he might reasonably be. There was no turning aside upon his part, no attempt to serve ends of his own”.’ ”
In the Wiggins case, supra, where the decedent was working on a metal road grader, compensation was claimed on the ground that the metal road grader attracted lightning, the court holding that it had a right to take judicial notice of the well-known laws of nature and a recognized scientific fact, quoted extensively from an article by one H. H. Cochrane, an electrical engineer, arriving at the conclusion that scientific authority did not support the theory that the presence of the metal road grader could have had any perceptible influence on the lightning and did not tend to increase the hazard of the decedent’s employment; and for this reason it held that the death did not result from an accident arising out of the employment. It states, though:
*493“Because projecting objects may occasion tbe atmospheric breakdown, trees, tall buildings and other projecting objects are more likely 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 ex rel. People’s Coal and Ice Co. vs. District Ct., 129 Mich. 502, and in Andrew vs. Failsworth Industrial Soc. (1904), 2 K. B. 32, and denied in Klawinski vs. Lake Shore M. & S. R. Co., 185 Mich. 643, in Koenig vs. Industrial Commission, 159 Wisc. 646, and in Kelly vs. Kerry County Council, 42 Ir. L. T. 23.”
In the Box case, the ground of the decision was that the risk to a workman of injury from a bolt of lightning which struck a tree that he was engaged in sawing down was greater than to one not so engaged.
Inasmuch as this view has regard not to the increase of danger from lightning generally but only to its increase from the particular bolt dealt with, the ground is somewhat different from that made the basis of the decisions awarding compensation in the other cases.
We. prefer to place our decision on the ground that the presence of Gasea under the tree increased the danger of his being struck by lightning because the tree was more apt to be struck rather than that his presence increased the danger of his being injured by the 'particular bolt which did strike the tree.
II.
The considerations that differentiate the lightning cases where compensation was allowed from those where it was disallowed, also differentiate, we think, the McCarter case from the former. The fragments from an exploding shell are not more likely to go in one direction than another or to strike one object than another.
In that case, therefore, there was no connection whatever between the employment and the accident other than the bare fact that the party injured was located where he was.
Lightning, though, has more regular habits than have the. flying fragments of an exploding shell, and where the situation of a workman because of his employment is such as to increase the danger of being struck by lightning, this is sufficient causal connection between the employment and the accident to justify holding that the accident arose out of the employment.
III.
Defendant’s counsel seek to differentiate this case from the Box and Madura cases by the circumstance that in the Box case the decedent was actually at work and in the Madura case he had been directed by his foreman to stay in the park and get under a tree; wlrereas in the instant case the accident happened during the lunch hour when Gasea was free to go where he chose.
We do not think this consideration controls. It is admitted in the case that the accident occurred a short time before or júst as he was about to return to work, that the tree under which he sought shelter was near the spot where he was working, that this tree was the most convenient shelter available, and that there was no other shelter.
We think that Gasca’s peeking shelter was incidental to his employment: If his duty to his employer did not require him to do this it at least permitted him to do it, and his doing it did not -constitute a break in the employment; nor do we think that the suspension of work in order to' eat lunch constituted a break in the employment.
*494We find in “Workmen’s Compensation .Acts,” a Corpus Juris treatise by Donald J. Kiser, published by the American Law Book Company and intended to constitute a part of Corpus Juris, on page 83 the law .laid down as follows:
“Where the employee is injured while doing something not strictly within his obligatory duty, but which is incidental thereto, he may be entitled to compensation. Of this character are injuries sustained while the employee is preparing to begin work after arriving at the employer’s premises, or preparing to leave when the work is over, or is going to punch a time clock, or to get his pay, or is going to lunch, or during the lunch period, or while otherwise temporarily absent from his work by permission.”
Rehearing refused.