Anderson v. Russell Miller Milling Co. , 196 Minn. 358 ( 1936 )

¹ Reported in 267 N.W. 501. Certiorari to the industrial commission to review an order denying compensation for death.

Petitioner is the widow of Adolph M. Anderson, who died August 1, 1933, from hydrocyanic gas poisoning on the premises of his employer. The determinative question is whether the cause of his death arose out of and in the course of his employment.

Mr. Anderson had been employed by respondent Russell Miller Milling Company for 29 years, the last five at the Minneapolis mill where death claimed him. On the night of July 31, 1933, the mill was fumigated with deadly hydrocyanic gas. The job was done by a fumigating company. During the afternoon its employes sealed the doors and windows. It was the first time during Mr. Anderson's experience at the Minneapolis mill that he had witnessed such preparations. Always before during the five years he had been employed there the mill had been fumigated with harmless tear gas sprayed by hand. The fumigation was to be completed and the mill ready to resume operations the following morning. The men were to report for work at the usual time, eight o'clock a. m. However, the evidence clearly shows that by the warning signs posted on all the doors, if not otherwise, the men were informed of the deadly character of the gas and warned not to enter, the testimony for the respondents being that each of the workmen was instructed not to enter the building on the morning following the fumigation until told to do so by his superior.

Of Mr. Anderson's fellow workers who testified, only two denied having been personally so warned. Only one denied knowledge of the dangerous character of the gas. A third testified that, while he could not remember any special warning, he could not have escaped knowledge, from contact with other employes and the posted signs, that poisonous gas was being used and that he was not to enter until told to do so.

On the third floor of the mill is a dressing room, equipped with lockers and shower baths, where employes change clothes before and after work. On the morning of August 1 Mr. Anderson arrived, as was his custom, at about 7:30 o'clock. He was the first one there. Punching the time clock, he entered the mill, went to the third-floor dressing room, and had started to change his clothes when he was overcome and killed by the gas.

1. The testimony of the head miller, Mr. Turner, that the preceding day he instructed Mr. Anderson not to enter the mill on the morning of August 1 until told to do so, as well as the testimony of Mr. Rubishak, an assistant foreman, who was posted as watchman at the door through which Mr. Anderson entered, that he told him not to go in because it was not yet safe, is now objected to (there was no objection when it was received) on the ground that it was inadmissible under 2 Mason Minn. St. 1927, § 9817, as conversation with one since deceased by one interested in the outcome of the action. Turner and Rubishak each owned a few shares of stock in the holding company which has a controlling interest in respondent company. Whether that brought their testimony within the statute under the rule of Peterson v. Merchants Elev. Co. 111 Minn. 105, 126 N.W. 534,27 L.R.A.(N.S.) 816, 137 A.S.R. 537, and Caldwell M. E. Co. v. L. L. May Co. 141 Minn. 255, 169 N.W. 797, need not be decided. Under other facts disclosed by uncontradicted and unimpeached testimony, the conclusion is irresistible that Mr. Anderson's death did not arise out of and in the course of his employment.

2. When Mr. Anderson reached the mill on the fatal day he could have seen, had he looked at the windows, that many were still sealed. The door through which he ordinarily entered was locked. The boiler room door, which was unlocked and through which he entered, was closed. But, tacked on it at eye level was a sign warning him to keep out. That sign, in evidence, is a piece of white cardboard, 20 by 12 inches, upon which in red is the word "DANGER" in letters two and one-half inches high, a red skull and crossbones three and one-half by three inches, and the words "KEEP AWAY — HYDROCYANIC ACID GAS — FUMIGATION" in red letters an inch and a quarter to two inches high. Identical signs were on all entrances. Moreover, Mr. Rubishak was posted as a guard at the boiler room door. Aside from the conversation between him and decedent, his undisputed and unobjectionable testimony is that he tried by physical force to keep Mr. Anderson from entering. But the latter managed to duck under his arm and shove past into the building.

The undisputed facts make it plain that even if Mr. Anderson did not appreciate the danger he yet wilfully disobeyed his employer's positive instruction to stay out. Hence he was not in the course of his employment at the time of his asphyxiation. His disobedience was not of a mere instruction concerning the manner of doing his work. The question is not, as it was in Olson v. Robinson, Straus Co. 168 Minn. 114,116, 210 N.W. 64, whether the employe "had departed from" his work "to such an extent" that the accident "cannot be said to have arisen out of the employment." It is rather a case where the employe had not gotten into the "course" of his employment for the day. The order violated was one which prevented beginning of the employment for that day until the signs, with their flared warning of danger, were removed from the entrances and the mill opened to the employes.

Violation of an order which takes an employe outside of the sphere of his employment at the time of injury bars compensation. Rautio v. International Harv. Co. 180 Minn. 400, 231 N.W. 214; Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11,116 N.W. 684, Ann. Cas. 1918B, 764; Gacesa v. Consumers Power Co.220 Mich. 338, 190 N.W. 279, 24 A.L.R. 675; Annotation, 23 A.L.R. 1161, 1172. Hence, violating an order which prevents beginning of employment must have the same result.

That Mr. Anderson had punched the time clock and was preparing for the day's work does not help the case for compensation. It does not follow, under the established facts, that because his "time" for the day had begun his employment had also. The employer could start the one and delay the other. That it had done everything reasonably possible to prevent the beginning of the employment for the day, until the mill was opened to the employes, is beyond question. Mr. Anderson's legal status in the mill was that of a trespasser rather than an employe.

The order denying compensation is affirmed.