(dissenting). Section 9437, R. C. 1919, provides for compensation for injury or death by accident “arising out of and in the course of employment.” Subdivision 2, § 9458, R. C. 1919, provides inter alia that, in event of death, no widow or child, surviving, compensation may be paid to a parent, provided the 'deceased employee leaves a parent who was “dependent upon him for support at the time of the accident.”
I do not believe that the evidence in this case is sufficient to show that the mother of decedent was dependent upon him for support at the time of the accident. In fact, it seems to- demonstrate quite conclusively that she was not.
Granting that a Workmen’s Compensation Act ought to be construed with the utmost liberality in favor of the employee and his dependents (and surely the prior decisions of this- court have approached the ultimate in such liberality), nevertheless it must be conceded that the mere fact that an accident has occurred is hardly sufficient in and of itself, without more, to require payment of compensation under the act. • In view of the general object sought to be attained by these acts, and under the express words of section 9437, R. C. 1919, I venture to think that it is neither un*21reasonable, nor unduly lacking in liberality, to require a plaintiff seeking compensation under the act for an accident to show, as a codition precedent to liability, that such accident was one “arising out of and in the course of employment.” In the instant case there seems to me to be an Utter lack of proof of that element. It is of the essence of plaintiff’s cause of action, and should rest upon something more than mere speculation and conjecture.
In this case there is.admittedly an entire absence of any direct or positive testimony that plaintiff’s intestate, at the time of the accident was engaged upon or in the course of any employment or duty for the defendant. It is the hypothesis of the plaintiff that he was so engaged. It would be pointless further to review the testimony here. It consists entirely of the existing surrounding and collateral facts and circumstances. It seems to me that the utmost that can be said as to such circumstances, making all concessions in plaintiff’s favor, and indulging all liberality, is this, some of the circumstances are consonant with plaintiff’s hypothesis. But I think it must further be said that none of those consonant circumstances rise to the dignity of proof, or are sufficient to establish the truth, or even the probable truth, of such hypothesis. Beyond this, it seems to me true in this case that a greater number of the surrounding circumstances point much more persuasively to the view that plaintiff’s intestate, at the time of the accident, was engaged in the course of a mission of his own, and not in the performance of any duty connected with his employment -by defendant. It further seems to me that, even those circumstances consonant with plaintiff’s hypothesis are equally consonant with this view, while, per contra, several of the circumstances lending strong support to this view are entirely unsusceptible of a reasonable explanation upon plaintiff’s hypothesis.
The case of Kansas City So. Ry. Co. v. Jones, arising in Texas, involved damages claimed under the Federal Employers’ Liability Act (45 USCA, §§ 51-59; U. S. Comp. St., §§ 8657-8665) for the death of plaintiff’s intestate. Judgment below was for the' plaintiff. The case then ran a stormy and troubled career in the state courts, being first reversed, then affirmed, then reversed a second time by the Court of Civil Appeals, and thereafter affirmed for' a second' time by the Supreme Court of Texas. See (Tex. Civ. App.) 282 S. W. 309, at page 314; (Tex. Civ. App.) 282 S. *22W. 309, at page 315; (Tex. Civ. App.) 287 S. W. 304; (Tex. Com. App.) 291 S. W. 528. Writ of certiorari issued from the Supreme Court of the United States, and in the course of an opinion (48 S. Ct. 308, 72 L. ed —, filed March 19, 1928) reversing this same judgment for the third, and presumably last, time, Mr. Justice Holmes said:
“Nothing except imagination and sympathy warranted a finding that the death was due to the negligence of the petitioner rather than to that of the man himself.”
In the instant case I have been unable to discover any other or greater warrant for the finding that plaintiff’s intestate at the time of the accident was in the course of his employment rather than upon a mission of his own.
Entertaining the view that the essential elements of plaintiff’s case ought to have somewhat more substantial support, I regret to find myself unable to concur with my brethren in this case. I think the judgment appealed from shouldi be reversed.