Sivald v. Ford Motor Co. , 188 Minn. 463 ( 1933 )

The evidence that Sivald's death arose out of his employment is necessarily circumstantial, there being no evidence as to who assaulted him or as to the circumstances of the assault. Sivald was there to watch the building, to protect it from prowlers who might otherwise gain entrance and do damage to it, as well as to watch out for fires and keep the building clean. While there was nothing in the building to steal, we take it to be well known that in an industrial section of a city near the railway yards prowlers are apt to enter vacant buildings and deface, befoul, and damage them, and by careless use of matches and cigarets may cause fires. Such persons, confronted by a watchman, may commit an assault. The character of such prowlers constitutes danger. The position of a watchman in such a building in the nighttime, in the location here shown, exposes him to hazards peculiar to his employment.

Maher v. Duluth Yellow Cab Co. 172 Minn. 439, 215 N.W. 678,679, is a clear statement of the law as applied to a situation of this kind. It is there held [172 Minn. 441]:

"While the employment need not be in the category of proximate cause, it must furnish occasion or inducement."

It is further stated [172 Minn. 442]:

"So, where the evidence is all circumstantial, if a finding is supported by an inference which is clearly reasonable, the reviewing authority cannot set it aside simply because of an opposing inference which seems to it more reasonable."

There was in that case, as in this, evidence that another person had a motive for doing violence to the one killed, although that person was not there definitely identified. The following cases tend to sustain the decision of the industrial commission: State ex rel. Anseth v. District Court, 134 Minn. 16,158 N.W. 713, L.R.A. 1916F, 957; Kaletha v. Hall Mercantile Co. 157 Minn. 290, 196 N.W. 261; Heidemann v. American Dist. Tel. Co. 230 N.Y. 305, 130 N.E. 302; Western G. S. Products Co. v. Pillsbury, 173 Cal. 135, 159 P. 423; Mechanics Furniture Co. v. Industrial Board, 281 Ill. 530,117 N.E. 986; Young v. City of Brown City, 222 Mich. 706,193 N.W. 811; Hills v. Blair, 182 Mich. 20, 148 N.W. 243, 246; John H. Kaiser Lbr. Co. v. Industrial Comm. 181 Wis. 513,195 N.W. 329; McLaughlin v. Davis Lbr. Co. 220 Ala. 440, 125 So. 608.

The burden of proof rested upon the respondent to prove by a fair preponderance of the evidence, including reasonable inferences from facts and circumstances shown, that the assault on Sivald arose out of his employment, had some causal connection with his employment. The employment need not be the sole cause.

In State ex rel. Common School Dist. No. 1 v. District Court,140 Minn. 470, 475, 168 N.W. 555, 556, 15 A.L.R. 579, it is said, in reference to the facts in that case:

"The employment may have given the occasion, and without the employment there might have been no opportunity, but there was no causal connection between the employment and the criminal act."

But in that case the assault was not on the premises of the master, and the facts as to how the assault occurred were fully shown and were such as to require a finding that it did not arise out of the employment. In the case last cited the court further said [140 Minn. 472]:

"When the nature of the employment is such as naturally to invite an assault, or when the employee is exposed to an assault by the character of his work, as when he is protecting or in charge of his employer's property, and the assault naturally results because of the employment and not because of something unconnected with it, so that it is a hazard or special risk of the work, the cases say that it arises out of the employment."

Other cases make substantially the same statement. As to an employment exposing a servant to more than the normal risks to which all are subject, see discussions in State ex rel. Peoples C. I. Co. v. District Court, 129 Minn. 502, 153 N.W. 119, L.R.A. 1916A, 344, and State ex rel. Anseth v. District Court,134 Minn. 16, 158 N.W. 713, L.R.A. 1916F, 957.

In our present case the assault happened while the employe was on the master's premises, engaged in the course of his employment in protecting his master's property and in charge thereof. In view of the nature of his employment as a night watchman in this building at the time, and the other circumstances shown, the triers of the facts could reasonably infer that the assault arose out of the employment.

While the other evidence referred to in the opinion, tending to cast suspicion upon one Durvald, and other circumstances therein referred to, would have justified the industrial commission in reaching a different result, still I do not consider that evidence at all conclusive against the finding of the commission. I think there was a prima facie case made and a question of fact for the commission. While a different inference might be drawn, it was for the industrial commission to choose which reasonable inference it concluded was sustained. We are not trying the facts here. It is of some significance that investigations were made by the authorities as to the cause of Sivald's death, and that nothing to connect Durvald therewith, or to show that he was anywhere near the place at the time of the assault, was discovered or presented in this case.