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District Court of Appeal, Fourth District, California.

Marco J. MADIN and Pacific Automobile Insurance Company, a corporation, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION OF The State of CALIFORNIA, James R. Richardson and Lethia Richardson, Respondents.*

Civ. 5118.

Decided: June 20, 1955

Higgs, Fletcher & Mack, John W. Burnett, San Diego, for petitioners. Everett A. Corten, Edward A. Sarkisian, Daniel C. Murphy, San Francisco, for respondents.

Respondent James R. Richardson and Lethia Richardson, husband and wife, occupied one of 14 rental units owned by petitioner Marco J. Madin in San Diego on the outskirts of the city in a somewhat unpopulated district. A new subdivision was being graded on the hill, several hundred yards from where the units were located. A large bulldozer was left on that subdivision property by the grading contractor and some vandals started it, and being unable to stop it jumped off and the runaway bulldozer ran down the hill, broke through and demolished the little house then occupied by respondents Richardson, who were at that hour (2 a. m.) in bed, crossed the highway, and continued for about one mile. Severe injuries were inflicted upon both of them and there was some evidence of shattered glass being removed from a portion of Mrs. Richardson's leg. No question is presented in respect to the injuries. For a further factual background in this respect see Richardson v. Ham Bros., Cal.App., 275 P.2d 532.

The pivotal point is whether the evidence supports the finding that the injuries did arise out of and occurred in the course of employment within the meaning of section 3600 of the Labor Code, which provides in part:

‘Liability for the compensation * * * shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment * * * in those cases where the following conditions of compensation concur: * * *

‘(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.

‘(c) Where the injury is proximately caused by the employment, either with or without negligence. * * *’ (Italics ours.)

The evidence in this respect shows that Madin did not live on the property. He acquired it in 1950. At that time the Richardsons were living in one of the cabins under arrangements with the former landlord. Similar arrangements were adopted by Madin, i. e., they received a discount of $10 on their rent per month ($35 reduced to $25) and a commission of 10 per cent of the rent they collected, averaging about $44.17 per month. The arrangements were that for the consideration indicated they were to show any vacant apartments to prospective tenants, collect rent, remit it to Madin, clean and remove trash, generally look after the property in the owner's absence, be there at all times, and take care of things if anything went wrong. They had no regular hours. Mr. Richardson did, on at least three occasions prior to the accident, in the middle of the night, repair the water pump which served the premises, and on occasions attended to other similar repairs during the nighttime. When repairs were necessary to the premises Mr. Richardson received a fee of $1.50 per hour for the labor he performed.

In their petition, petitioners concede that there was sufficient evidence to show that the Richardsons were injured ‘in the course of their employment’ under the ‘bunk house rule’, since they were on 24-hour duty. The argument is that the evidence does not show that their injuries were, at the time, proximately caused by the employment or that they ‘arose out of the employment’ within the meaning of section 3600 of the Labor Code, citing such cases as Kimbol v. Industrial Accident Comm., 173 Cal. 351, 353, 160 P. 150, 151, L.R.A. 1917B, 595, holding in effect that the phrase “arising out of the employment” is held to refer to the cause of the injury and the risks or hazards presented by the employment, i. e., that the injuries were employment connected, citing Liberty Mutual Ins. Co. v. Industrial Acc. Comm., 39 Cal.2d 512, 516, 247 P.2d 697, 699, holding that:

“There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury.' California Casualty Indemnity Exchange v. Industrial Accident Commission, 190 Cal. 433, 436, 213 P. 257, 258. * * *'

And the term ‘cause’, as it pertains to Workmen's Compensation Laws, as defined in II Hanna, The Law of Employee Injuries and Workmen's Compensation [1954] p. 185, says:

‘To ‘cause’ means simply to produce an effect or to bring about a result * * * it must do more than merely provide the occasion for an injury or contribute the location for the happening of an accident. To constitute a cause, it must also furnish the harm-producing factors or affirmatively contribute to the production of the harm itself. Clearly an injury is employment-caused when it results from a harm-producing factor of employment origin. Clearly, also, it is not employment-caused when it results from a harm-producing factor of non-employment origin, unless an element of causal connection is also contributed by the employment. Such a contribution may take place through the media of either (1) special exposure, or (2) joint contribution of the employment and non-employment factors to the production of the injury.'

It is contended that the ‘special exposure’ doctrine, relied upon by respondents in Fairchild v. Great Western Power Co., 8 I.A.C. 77; and Pacific Indemnity Co. v. Industrial Acc. Comm., 86 Cal.App.2d 726, 732, 195 P.2d 919, is not here applicable because the evidence is indisputable that the harm-producing factor in this case was the bulldozer and was extraneous to the employment; that neither the employer nor anyone acting in his behalf, was responsible for, owned, or operated the bulldozer, and since it was conceded that it was owned by a third party stranger and started by an unauthorized person, and that as a result of this starting it ran away and eventually crashed through the claimant's house, it was not a special exposure insofar as respondents were concerned.

In Truck Insurance Exchange v. Industrial Acc. Comm. 77 Cal.App.2d 461, 175 P.2d 884, 885 [Hearing denied by the Supreme Court], the workman assigned to work on a roof was apparently killed by lightning striking a cast iron vent pipe on the roof of a building which had been dampened by rain. The court, in upholding the award under those circumstances, accepted, in part, the statement in In re Employers' Liability Assurance Corp. (In re McNicol), 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, that:

“It (the injury) arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury'.' And said: ‘In determining whether an injury through action of the elements arose out of the employment, the commission or other fact-finding body is required to make a finding as to whether the risk from which the injury arose was one which was common to the entire community or one which by reason of the nature of the employment was greater than the risk to which the public in general was exposed. Where the hazard is uncommonly great, the risk arises out of the employment and the injury is compensable. The legal principles which determine liability are the same whether the injury results from an act of God or a human agency. In either case it is a question of fact whether there was a causal connection between the nature of the employment and the injury.

‘The courts of all jurisdictions recognize the principle stated in 71 C.J. 758, that ‘Harm resulting from lightning may be compensable as an injury arising out of and in the course of the employment, where the injured employee is by reason of his employment peculiarly exposed to risk of injury from this source.’'

It then stated that the sole question before the court was whether the implied finding of the commission that the injured person was peculiarly or uncommonly exposed to injury by lightning found support in the evidence. The court then recited the factual situation and concluded that lightning is less likely to strike the flat surface of the ground than it is to strike at high points or to strike objects such as buildings or trees which extend a substantial distance above the surrounding surface if they are free conductors of electric energy. Many cases are therein cited indicating decisions both ways as to whether or not under certain facts an award was proper. The determining factor was stated to be whether there was sufficient evidence to show that the injured person's ‘exposed position on the roof involved an uncommon risk, that is to say, one that was substantially greater than the risks of all others who were in the same vicinity’. It was then stated that ‘Those who were required to carry on their work in exposed positions may all have been in greater danger than others in the vicinity who were sheltered from the storm’, and accordingly ‘A person who is injured by a bolt of lightning which strikes at a single point is usually occupying a position among surroundings which differentiate it from the positions of others in the vicinity, and this is not generally true in cases of injuries from heat, cold, floods, cyclones, and the like, where all those who were exposed may have been equally subjected to danger.’

It is clear from the evidence here presented that respondents were not, by reason of their employment, occupying a position among surroundings which differentiated it from other positions in that vicinity. All persons inhabiting those several dwellings similarly located, as well as the public at large, were equally subjected to such danger. Under the circumstances of this case we must conclude that no sufficient facts have been shown to support the award.

The additional claim is made that section 4453 of the Labor Code is unconstitutional and amounts to a taking of property without due process of law insofar as the section provides that a claimant earning less than $15 per week at the time of an injury is to be considered as earning a maximum of $15 per week for the purposes of awarding temporary or permanent disability indemnity. In view of the determination heretofore reached it becomes unnecessary to decide this question.

Award annulled.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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