Lumbermen's Indemnity Exchange v. Vivier , 1922 Tex. App. LEXIS 536 ( 1922 )

My brethren have concluded that Vivier was murdered and robbed because of reasons personal to him, and not directed against him as an employee of the Smyth Lumber Company. Who murdered and robbed Vivier, and what was the motive? My brethren exclude a motive of revenge, because they find:

"The affirmative and undisputed evidence is that deceased was a man of lovable disposition and had no enemies so far as known."

They say the motive was robbery — to rob Vivier of $19.25. Then the robber must have been a friendly fellow workman, because the evidence excludes the probability of any other person knowing that he had the money on his person. The money was paid to him by an agent of his employer on the evening before he was murdered. No stranger had an opportunity know that he had it on his person. While he was in the employment of the Smyth Lumber Company, no one except his friends knew when and how he was paid his weekly wage; at least, no other inference can be reasonably drawn from this record. Was the trial court required to find that a friendly fellow workman, actuated only by the motive of ill-gotten gain, murdered and robbed Jules Vivier for the paltry sum of $19.25? Such things have been done, but, on the facts of this record, such a conclusion is so improbable that the trial court, as a matter of law, was not compelled to adopt it. Hence I dissent from the conclusion reached by the majority.

My conclusion is that Vivier was murdered and robbed because he was an employee of, or because of his employment with, the George W. Smyth Lumber Company. In reaching this conclusion from the record, I recognize that appellee was under the burden of showing that her claim for compensation was not excluded by the second section of the article of the Workmen's Compensation Act, as quoted in the majority opinion. As there was no conflict in the testimony, I also recognize that she must meet the requirements of the rule well stated by Mr. Justice Carter in Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96,115 N.E. 149:

"It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. [I would cite Railway Co. v. Carter, 166 S.W. 115; Carlton v. Cooper, 160 S.W. 597; Smith v. Bank, 99 Mass. 605; Railway v. Henderson (Ark.) 21 S.W. 878.] A theory cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them. Condon v. Schoenfeld, 214 Ill. 226,73 N.E. 333; Neal v. Chicago, Rock Island Pacific Ry. Co.,129 Iowa 5, 105 N.W. 197, 2 L.R.A. (N. S.) 905. But the proof of such facts may be made by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts. Devine v. Delano, 272 III. 166, 111 N.E. 742; Hills v. Blair, supra."

See, also, Smith v. Heitman, 44 Tex. Civ. App. 358, 98 S.W. 1074; Spoon v. Sheldon, 27 Cal. App. 765, 151 P. 150; Ferrell v. Beaumont Traction Co. (Tex.Com.App.) 235 S.W. 531.

Measured by the test that "a greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts," I submit that a careful examination of the testimony shows that appellee has made out her case. If she has, this court is without authority to disturb the judgment rendered in her favor.

Vivier was employed as a night watchman. His duty was to guard the premises against trespassers, tramps, thieves, thugs, and night prowlers. The premises were open and exposed to such persons. I say this because the evidence shows that at one time a tramp was caught in a shaving pile on the premises, and children in the neighborhood were charged with stealing wood from the premises. As to the duties of Vivier, Mr. Sager, the manager, testified:

"He was watchman over everything concerning the planing mill department. He had other duties besides punching the clock; he had to see that there was no trespassers in or around there, and he had to see that they did no damage to the property; he was there to protect the company's property. In addition to keeping a watch out for fire around the plant, he was there for the purpose of protecting the property of the George W. Smyth Lumber Company."

The current history of to-day, as told by the newspapers, is replete with tragedies similar to this — faithful night watchmen killed by night prowlers on the chance of getting whatever is convenient at hand. The facts marshaled by the majority in support of their conclusion tend with more potency, it seems to me, to support the conclusion I have reached. It is scarcely possible that a night prowler would have undertaken to pilfer from the premises without locating the watchman. When found, he was an easy prey to a murderous assault. Having both killed and robbed, the assailant hastily left the premises. This conclusion seems to me to be logical — in fact, the only reasonable conclusion to be drawn from the undisputed facts. But my brethren say:

"There is not the slightest suggestion in the evidence that the assailant came upon the premises for the purpose of trespassing, nor with the intention of molesting in any way the premises or any of the property of the George W. Smyth Lumber Company. On the contrary, the undisputed evidence, as we have detailed it, excludes any such surmise or suggestion. Not a thing on the premises had been molested. Not even the key to the office door, which was hanging on a post near the chair in which deceased was sitting, had been removed. There isn't a scintilla of evidence suggesting that the assailant was detected by the deceased upon the premises, and that the deceased, in the performance of his duties, attempted to expel the assailant or to question his purpose there."

"Not even the key to the office door, which was hanging on a post near the chair in which deceased was sitting, had been removed." Must the conclusion follow that the assailant saw the key, or knew of its existence? If the key has any weight in the case, should not it be inferred, with more probability, that the assailant searched Vivier for the key, found the pay envelope, and was satisfied with the night's work. "Not a thing on the premises had been molested." This was a lumber yard. Except for the things in the office (and it was locked) it does not appear that there was anything on the premises that the assailant could have stolen. He could have wantonly destroyed the property. He could have broken into the office. But this would have tended to give warning of his presence. He had committed murder and robbery, and every instinct of self-preservation warned him to leave as silently as he had entered, with the least possible trace of his presence. I concur with my brethren that there is no suggestion that Vivier detected the assailant on the premises, nor that he attempted to expel him. I think the record shows conclusively that Vivier never knew of his presence. But this circumstance is without probative force on either inference. If the assault was prompted by a motive to rob Vivier of $19.25, or if it was committed by one entering for the purpose of pilfering the premises, doubtless the assailant would have approached Vivier with all possible caution.

I believe the evidence fully supports the conclusion that Vivier was assaulted by a night prowler, who entered the premises with no motive directed against him personally, but for the purpose of pilfering the premises, and having found Vivier on the premises, assaulted and robbed him as an incident of his unlawful entry.

This conclusion calls for a discussion of the section of the article of the Workmen's Compensation Act quoted by my brethren, and on which they base their opinion. Under this section, if the assailant entered the premises with the formed design of robbing Vivier, appellee has no cause of action. Walther v. American Paper Co., 89 N.J. Law, 732, 99 A. 263. But, if he entered the premises for an unlawful purpose, without reference to Vivier personally, then he was injured "because of his employment," and his death does not come within the provisions of section 2. Hellman v. Sand Paper Co., 176 A.D. 127, 162 N.Y.S. 335. In other words, if Vivier was assaulted because he was the night watchman, and not because he was Vivier, then this judgment should be affirmed, for his employment subjected him to just the risk that resulted in his death. As I think such an inference can and should be drawn from the testimony in this case, and as the trial court so found, I think his judgment should be affirmed.

I heartily concur in the following proposition announced by my brethren on the proper construction of the Workmen's Compensation Act:

"It has been said by every appellate court in this state that the Workmen's Compensation Act should receive a liberal construction in favor of the employee and this court has, on several occasions, so declared; but by ``liberal construction' is not meant that the very letter and spirit of any provision of the law, which is positive and clear in its meaning, should be disregarded in order to give compensation to an unfortunate employee or those dependent upon him."

But I do not understand that a "strict" or "liberal construction" of the act has anything to do with the issue involved in this case. The law, under the aforesaid section 2, imposed a certain burden on appellee. She can only meet that burden, as I understand, by complying with the conditions of the rule I have quoted. This rule seems to be recognized in all cases where the evidence is undisputed. As the burden rested on her, under this general rule the judgment should be affirmed if she has reasonably met its terms. If she has not, then her case must fall, on the ground that she has failed to discharge the burden imposed upon her by law.

On the facts of this case, I believe my conclusion is supported by the great weight of authority. In the following cases, and in the cases reviewed by them, facts similar to the facts of this case are discussed: Ohio Building Safety Vault Co. v. Industrial Board, supra (almost on "all fours"); Chicago Dry Kiln Co. v. Industrial Board et al.,276 Ill. 556, 114 N.E. 1009, Ann.Cas. 1918B, 645; Polar Ice Fuel Co. v. Mulray, 67 Ind. App. 270, 119 N.E. 149. I would specially call attention to the second syllabus of the last-cited case:

"Although the inference, that servant's death arose out of his employment is not the only one that might be drawn from the evidence, yet, being a reasonable conclusion, such finding by the Industrial Board must be upheld."

The majority closed their statement of the case with the following statement by appellee:

"Whoever killed him [referring to Jules Vivier] did not kill him for the money he had in his pocket."

The statement of facts reflects that learned counsel for appellant replied to this statement by appellee by saying:

"Yes; I agree with you on that."

And I would close this opinion by saying that I heartily concur with counsel in the conclusion thus expressed by him.