I dissent.
The majority opinion assumes that the killing occurred in the course of the employment, and I cannot escape the conclusion that it also arose out of it. When the deceased started down the stairs it cannot be doubted that his mission continued until the occasion of the suspicious noise was ascertained and the situation dealt with. The discovery and the killing were simultaneous. In such an undertaking how can it be held that both elements of the employment did not concur with the shooting? It is apparently conceded that if a burglar, and not Lim Foon, had caused the killing it would have been compensable. In my view, under the evidence, no clear reason appears why the injury is not compensable because it was inflicted by Lim Foon.
The risk of the employment continued up to the time of the shooting. According to the other view the risk ceased with the discovery of Lim Foon, and from that moment the deceased would be without the protection of his employment. He came to the spot where he lost his life upon the express direction of Mrs. Garvey. That she realized he was entering upon a dangerous expedition is evidenced by the circumstances *Page 678 that she armed herself and accompanied him to what proved to be his death. As I have pointed out, the risk of the employment attached when the mission was entered upon and continued until it ended. Meeting the situation as it arose was a part of the undertaking, and what actually occurred when the occasion for the noise was discovered was just as much a part thereof as the investigation itself. The deceased exercised no volition in obeying Mrs. Garvey's direction; he simply complied with her orders, and in such circumstances the risk of the employment is as broad as the service rendered. The service rendered in this case is the proximate cause of the killing.
The majority opinion reasons that "Under these circumstances it is clear that the Chinaman intended to kill the deceased, and that he had no intention of killing his employer or molesting her property." This conclusion necessarily involves a pure question of fact which it is exclusively within the province of the Commission to decide. The rule has been declared that "This court, in reviewing awards of the Commission, is not acting as a court of appeal. It has no power to weigh the effect of positive evidence. It must assume that the Commission believed all the evidence given which tends to sustain the award made." (Southern Pac. Co. v. Industrial Acc.Com., 177 Cal. 378 [170 P. 822]).
According to Mrs. Garvey she knew nothing of a feud between the deceased and Lim Foon, notwithstanding she witnessed the scuffle which she testified appeared to be friendly, and inwhich another chauffeur of the family took part. Mrs. Garvey testified she thought he blamed the other chauffeur, who picked him up and put him in the closet. The deceased merely stood by while this was being done. In view of this evidence is this court to decide against which one of the chauffeurs, if either, Lim Foon nursed a grievance? He had been with the family for two years, was "a model servant," "very quiet and gentlemanly" and "absolutely trustworthy." The scuffling occurred six weeks or two months before the shooting, and that incident is the only reason suggested for any animosity on on the part of Lim Foon. Moreover, there is evidence that on the morning preceding the killing he exhibited a friendly spirit toward the deceased. But Lim Foon's action may have been inspired by causes entirely independent of the deceased. The housekeeper *Page 679 testified that when Lim Foon was leaving the house that morning, in answer to her usual injunction, "Lim, be a good boy," "he looked at me kind of funny and said, 'I am not going to be a good boy, I am going to be bad.' He came back and said goodby to Mr. Garvey and me and I walked to the door with him and said, 'Lim, at least try and be a good boy or we'll have to send you to Sunday-school." He went off laughing. I called to him from the window and said, 'Goodby, Lim, be good.' " This was his day off and he left at 10:45 A. M. It was his custom to return early in the evening. The gardener testified the deceased entered the house from the garage from ten to fifteen minutes before the shooting, and that, returning from downtown, Lim Foon followed him into the house from five to seven minutes later. It would appear from the evidence that Lim Foon was not aware the deceased had preceded him into the house. He urged his employer to go out riding that afternoon, which was an unusual suggestion for him to make. It is in evidence that Mrs. Garvey did not expect to find him in the house at the hour in question. Respondents argue that the strange look on his countenance at the time of the shooting might not be due to an intention to kill, but to some other wrongful act in the contemplation or execution of which he was interrupted. It was also suggested the act of killing may have been due to insanity, but this, like the other theories, is found by the Commission to be purely conjectural.
Notwithstanding the finding of the Commission that the specific purpose of Lim Foon appearing armed is unknown, the main opinion assumes to decide that precise question of fact by holding that he killed the deceased either "from motives of a private revenge or for some other reason pertaining to him individually." This, it seems plain, is invading the province of the Commission and determining a question of fact which it was unable to decide. The Commission no doubt took into account the circumstance that Lim Foon appeared friendly to the deceased on that morning. If the Commission, with the witnesses before it, could not discover the motive for his action this court could hardly solve the question of fact. In all probability it can never be satisfactorily determined. The question of motive or want of it is hopelessly involved in conjecture and is beyond *Page 680 the finite mind to solve. If Lim Foon suddenly became insane the law would not impute a motive to him. Nor do I find warrant for the further statement in the majority opinion as to what Mrs. Garvey would have done if she had known Lim Foon caused the suspicious noise, or that, discovering his presence, she was satisfied the errand was unnecessary or fruitless.
In my opinion a prima facie case was made out by the claimants and the award should therefore be affirmed.
All the Justices concurred, except Lawlor, J., who dissented.
Rehearing denied.