Orcutt v. Trustees of Wesley M.E. Church

That our duty is to construe the compensation act liberally has nothing to say to the case, for the necessity remains to find a ponderable basis for it in the evidence before sustaining a finding for the affirmative of the issue. No such basis has been discovered by my search of record and briefs. And it appears to me plainly that, if there is any such evidence, it is not only outweighed but completely obliterated by contrary proof.

The conflict, if any, is between the inferences and not in the evidence itself. The proof is that Orcutt was mopping the basement floor when he was interrupted to admit to the belfry the members of the committee appointed to get the pigeon nuisance abated. That committee then and there decided that the first step in the abating process was the installation of effective screen barriers against the birds. They did not then suggest to Orcutt, and no consideration of the situation could have resulted in the suggestion, that in the absence of the screens there could be even a beginning on the abatement of the nuisance by hand catching a few pigeons in the attic. Without such a beginning the church would not be served and Orcutt could not have believed otherwise. Hence, it seems to me, every conclusion is negatived except that Orcutt was induced to go after the doves because of their edibility and so for reasons wholly personal to himself and not at all connected with his employment.

Incidentally it is a significant item of proof that the job of mopping upon which the deceased was engaged was never finished. How likely is it that if his thought was to serve his employer he would have quit, short of its completion, that definitely assigned task to engage in one not only unassigned but so obviously futile? The main nuisance was not in the attic but in the belfry. There certainly can be no suggestion that catching a few birds in the attic would have remedied, even temporarily, the condition in the belfry. That view of the case is put beyond question by the ante mortem statements of the deceased himself. He questioned his own conduct — "Why did I go up there" — and later said that he did so "to catch pigeons." I can find no adequate basis for the conclusion that he may have thought it was to serve his employer, or that he had "reasonable justification for believing that what he undertook to do * * * was within the scope of his implied duties." State ex rel. D.B. M. Co. v. District Court, 129 Minn. 176, 151 N.W. 912. Young v. Bjornes,165 Minn. 473, 206 N.W. 933, seems to me clearly distinguishable because there the employe was injured by falling, in some fashion wholly unexplained, from a ladder upon or with which he was employed under what amounted, at the time being, to the immediate supervision of his employer, who was personally present.