Opinion
Application No. 14585.
Decided April 7, 1926.
Workmen's Compensation Law — Death by Lightning — Peril Peculiar to Employment.
Following the ruling in Cassell v. United States Fid. Guar. Co., ante, p. 371, the decision herein on appeal ( 281 S.W. 306) is approved, sustaining a recovery under the Workmen's Compensation Law for death of a laborer by lightning as supported by evidence that, although by act of God, it was incurred through exposure to such stroke incident to the labor at which he was employed. (P. 405.)
Application to the Supreme Court for writ or error to the Court of Civil Appeals for the Second District, in an appeal from Clay County.
The Guaranty Co. appealed from a ruling of the Industrial Accident Board awarding damages to Mrs. Richardson and her two minor children for the death of her husband, who was killed by lightning while laboring for the Lone Star Gas Co. which had insured its employes with the defendant against injuries received in its service. A like judgment being rendered in the District Court, defendant company appealed therefrom, and on its affirmance ( 281 S.W. 306) applied for writ of error, which is here refused in a memorandum opinion per curiam.
Seay, Seay, Malone Lipscomb, and Wantland, Glasgow Dickey, for petitioner.
Where at the conclusion of the testimony the undisputed evidence showed that the death of the deceased was the result of an act of God, to-wit: a stroke of lightning, and further showed that at the time of his death the deceased was not engaged in the performance of duties which subjected him to a greater hazard from said act of God than ordinarily applied to the general public, it was reversible error to refuse this plaintiff of error's request for a peremptory instruction in its favor. Marshburn v. Stewart, 256 S.W. 575; Payne v. Harris, 241 S.W. 1008; Guisti v. Galveston Tribune, 105 Tex. 497, 152 S.W. 167; Texas Employers Ins. Assn. v. Downing, 218 S.W. 112; Gulf, etc., R.R. Co. v. State, 72 Tex. 404, 10 S.W. 81; Miller Co. v. Texas, etc., R.R. Co., 83 Tex. 518, 18 S.W. 594; Rainey Hamon v. Hamilton White, 234 S.W. 229; Emmich v. Hanrahan Brick Ice Co., 201 N.Y.S., 638; Wiggins v. Industrial Accident Board, 170 P. 9; Chiulla de Luca v. Board of Park Commissioners, 107 A. 611; Madura v. Bronx Parkway Commission, 144 N.E. 505; State on Relation of Peoples Coal Ice Co. v. District Court, Ramsey County, 153 N.W. 119; Andrew v. Failsworth I. Society, 2 K.B., 32, 90 L.P., 611; State Road Commission v. Industrial Comm. of Utah, 190 P. 544; Klawinski v. Lake Shore M.S. Ry. Co., 152 N.W. 213; Griffith v. Cole Bros., 165 N.W. 577, L.R.A., 1918F, 923; Kelley v. Kerry County Council, 13 B.W.C.C., 194; Thier v. Widdifield, 178 N.W. 16; Hoenig v. Industrial Commission, 150 N.W. 996.
E.W. Napier, for defendant in error.
This case was rightly decided by the Court of Civil Appeals under the principle announced in the opinion of this court in the case of Cassell et al. v. United States Fidelity Guaranty Company, this day determined.