1 Reported in 212 N.W. 173. Certiorari to review the order of the industrial commission awarding compensation to the dependent widow of the deceased employe, Ernest Orcutt.
The only question is whether the injury which resulted in Orcutt's death arose in the course of his employment.
Orcutt was in the employ of the defendant as a janitor and caretaker. On September 8, 1925, he fell through the skylight in the attic into the auditorium below and received injuries from which he died a few days later.
The belfry of the church was infested with pigeons. They were a recognized nuisance. They injured the building. There is evidence that they disturbed the sleep of persons in adjoining apartments. Some had been shot because they were a nuisance. On September 8, 1925, two members of the house committee met at the church to devise means of remedying conditions. Authority to act had been conferred upon them. Orcutt was at work in the basement mopping. He had the keys and conducted the two members to the belfry. They made an investigation, apparently in the presence of Orcutt, and "thought it high time something be done about cleaning it out," and there was some talk about what should be done. They had in mind screening them out. Orcutt came down with the committee members and resumed his work in the basement. The members left about 4 o'clock and about 4:30 Orcutt fell through the skylight. Just what he did after the members of the committee left is not definitely known. He went to the attic, for he fell through the skylight from there. After the accident some pigeons which it is to be inferred he had caught and put in a sack were found near the place where he fell. The claim of the defendant is that Orcutt returned to the attic and caught the pigeons for his own purposes, and in doing so departed from his employment so much as to prevent compensation. The finding of the industrial commission is against the claim that he was not in the course of his employment.
When he was hired Orcutt was not told each specific task which he was to do. He was janitor and caretaker of the church charged *Page 99 with the duties attendant upon such position. There was no one over him to direct every movement. To some extent he might exercise his own initiative. In State ex rel. D.B. M. Co. v. District Court, 129 Minn. 176, 151 N.W. 912, the court, speaking of course to the particular facts present, said that "when a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place to do something in furtherance of his master's business, and meets with accidental injury therein, the trial court's finding, that the accident arose out of and in the course of employment, should not be disturbed, unless it is clear to us that the ordinary servant, in the same situation, would have no reasonable justification for believing that what he undertook to do when injured was within the scope of his implied duties." The case before us is perhaps as strong for the plaintiff as Young v. Bjornes, 165 Minn. 473,206 N.W. 933, where the finding of the commission upon evidence far from certain was sustained.
The compensation act is liberally construed. An employe is not necessarily outside its protection, though not in strict obedience of orders, or though he is disobeying them. The cases are discussed in Olson v. Robinson Straus Co. 168 Minn. 114,210 N.W. 64.
Orcutt was on the premises of his employer. The accident occurred during his working hours. His work was not confined to specific tasks. He was a caretaker and janitor, with the duties attendant upon such a position, and had some discretion. He was not as a matter of law without the compensation act in doing acts, not directed but in good faith undertaken in the furtherance of his employer's interests. The evidence sustains the finding of the commission. It would permit a contrary finding.
Order affirmed.