Secs. 6998-02, subsec. (2), 6998-04 Code 1942; Barry v. Sanders Co., (Miss.), 52 So.2d 493; 58 Am. Jur. pp. 765-767; Myers v. Louisiana Ry. Nav. Co., 140 La. 937, 74 So. 256; O'Leary v. Brown-Pacific-Maxon, Inc. 71 S.Ct. 470; Keyhea v. Woodward-Walker Lbr. Co., Inc., (La.), 147 So. 830; Petroleum Casualty Co. v. Kincaid, et al., (Tex.), 93 S.W.2d 499, appl. for writ of error dismissed, 122 S.W.2d 1048; Harvey v. Caddo DeSoto Cotton Oil Co., (La.), 6 So.2d 747; Dyer, et al. v. Rapide Lumber Co., 154 La. 1091, 98 So. 677; Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248; Selser et al. v. Bragman's Bluff Lbr. Co., Inc., (La.), 146 So. 690; Sweat v. Allen, 145 Fla. 733, 200 So. 348; Stone-Brady, Inc., et al. v. Heim, (Fla.), 12 So.2d 888; Southern Surety Co. v. Shook, et al., (Tex.), 44 S.W.2d 425. IV. When it is established that injuries were sustained in the course of employment the presumption arises as a matter of law that the injuries were caused by the employment.
' ( Pacific Indem. Co. v. Industrial Acc. Com., supra, 86 Cal.App.2d 726, 728.) This case also cites with approval the following from Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720 [ 6 So.2d 747, 750]: `". . . that his death was due to the fact that his employment necessitated that he be at the place where the accident occurred and that, therefore . . . the accident arose out of, and was incident to the employment."' ( Pacific Indem. Co. v. Industrial Acc. Com., supra, p. 733.)
I. Appellants' evidence was sufficient to allow the claim. Rogers v. Mengel Co., 180 So. 499; Harvey v. Caddo DeSoto Cotton Oil Co., 6 So.2d 747; Whittemore Bros. Corp. v. De Grandpre, 30 So.2d 896; Cone Bros. Contracting Co. v. Allbrook, 16 So.2d 61; Diagle v. Moody, 144 So. 596; Wells v. Morris, 35 So.2d 55; Tallent v. M.C. Lyle Son, 216 S.W.2d 7; O'Leary v. Brown-Pacific-Maxon, Inc., 71 S.Ct. Rep. 471; "Current Trends in Workmen's Compensation" โ Samuel B. Horovitz; Simmons National Bank v. Brown, 195 S.W.2d 539; Hunter, et al. v. Summerville, 169 S.W.2d 579; Railway Express Agency v. Lewis, 159 S.E. 188; Jordan v. Dixie Chevrolet Co., 61 S.E.2d 654. II. Appellants' evidence raised a presumption which was not rebutted by appellees. 120 A.L.R. 684; Sanford v. A.P. Clark Motors, 45 So.2d 185; Martin v. Industrial Commission, 242 P.2d 286; Schmitt v. Bay Ridge Hospital, et al., 99 N.Y.S.2d 632; Browne v. Marvel Transportation Co., 283 N.Y.S. 209; Capitol Paper Co. v. Conner, 144 N.E. 474; Keeler v. Sears, Roebuck Co., 183 A. 20; Sullivan v. Suffolk Peanut Co., 199 S.E. 504; Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 A
" ( Pacific Indemnity Co. v. Industrial Acc. Com., supra, 86 Cal.App.2d 726, 728.) This case also cites with approval the following from Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720 [ 6 So.2d 747, 750]: "`. . . that his death was due to the fact that his employment necessitated that he be at the place where the accident occurred and that, therefore . . . the accident arose out of, and was incident to the employment.'" ( Pacific Indemnity Co. v. Industrial Acc. Com., supra, p. 733.)
The conclusion derived in the Kern case was confirmed by the Harvey decision in which the court based its conclusions upon the fact that "the deceased by reason of his employment was required to be in a building which fell upon him; that his death was due to the fact that his employment necessitated that he be at the place where the accident occurred and that, therefore . . . the accident arose out of, and was incident to the employment." ( Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720 [ 6 So.2d 747, 750].) The Supreme Court of Ohio held that because the decedent was killed in a large house in which he found asylum from a storm his dependents were entitled to compensation.
These are: (1) where the master furnishes transportation to and from work, and (2) where the injury occurs near to the master's place of business and results from a hazard to which the employee was exposed because of his employment, such hazard being greater to him than to members of the public generally. However, the test involved in the latter exception, as said in Harvey v. Caddo DeSoto Cotton Oil Company, 199 La. 720, 6 So.2d 747-749, has not been uniformly followed. It was not adhered to but clearly deviated from in Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19, 20.
See, e.g., Martin v. Industrial Comm'n, 75 Ariz. 403, 411, 257 P.2d 596, 601 (1953); Martin v. Industrial Comm'n, 73 Ariz. 401, 404, 242 P.2d 286, 288 (1952); State Comp. Fund v. Delgadillo, 14 Ariz. App. 242, 244, 482 P.2d 491, 493 (1971). See, e.g., Nippert v. Shinn Farm Const. Co., 223 Neb. 236, 388 N.W.2d 820 (1986) (positional-risk doctrine applied to injury resulting from tornado); National Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979) (injury by tornado); Whetro v. Awkerman, 383 Mich. 235, 174 N.W.2d 783 (1970) (injury by tornado); Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720, 6 So.2d 747 (1942) (death resulting from cyclone); Aetna Life Ins. Co. v. Industrial Comm'n, 81 Colo. 233, 254 P. 995 (1927) (injury resulting from lightning). Circle K asserts that a claimant may only prevail on the "arising out of" element by establishing: 1) the cause of the unexplained fall, and 2) the relationship of the cause to the employment.
See Hughes v. Trustees of St. Patrick's Cathedral, 245 N.Y. 201, 156 N.E. 665 (1927). Whetro v. Awkerman, 383 Mich. 235, 174 N.W.2d 783 (1970); Mixon v. Kalman, 133 N.J.L. 113, 42 A.2d 309 (1945); Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720, 6 So.2d 747, 751 (1942); National Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455, 456 (1979); London Guarantee Accident Co. v. McCoy, 97 Colo. 13, 45 P.2d 900 (1935). The four other standards are the peculiar-risk, increased-risk, actual-risk and proximate cause tests. Under the peculiar-risk test, the employee has to show that the source of the harm was peculiar to his employment.
Many of the states are moving toward the "positional risk test" as pointed out by Professor Larson in 1 Workmen's Compensation Law ยง 8.12 (1968). Our sister state of Louisiana has met the problem by adopting the positional risk test in the case of Harvey v. Caddo De Soto Cotton Oil Company, 199 La. 720, 6 So.2d 747, 751 (1942). In that case the Court said:
It is, of course, well settled that the statute must be given a liberal interpretation to effectuate its beneficent purpose of relieving the workmen of the crushing economic burden of work-connected injuries by diffusing the cost in the channels of commerce. See Harvey v. Caddo DeSoto Cotton Oil Co., 199 La. 720, 6 So.2d 747 and Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677. In the instant case, the Court of Appeal found that the plaintiff's employment was not continuous. It found that he was neither on duty nor on call for twenty-four hours each day.