Julius J. Olson, Justice
(dissenting).
Anderson had been an employe of respondent employer over a period of more than 29 years, the best part of his working life. He was nearing his sixtieth birthday when the fatal accident occurred. Unemployment at the time of his death, and over a long period immediately preceding, was the most important local and national problem. There is no suggestion that he was ever disobedient to orders. It is obvious, too, that he would not risk his life by going into the mill and thereby expose himself to lethal gases had he known there were such. In the very nature of things he was doing what to him appeared to be his duty. His job depended upon obedience to rules, and his own self-preservation (had he been informed of the danger) demanded it. To say that he was a “trespasser” upon or within his employer’s premises at the time of this unfortunate accident is to my mind unwarranted.
He came upon his employer’s premises at the usual time and in the usual way. He went about his work as always had been his custom. When he was found unconscious in the locker room he had commenced changing his street clothes for those in use when at work, all in accordance with his daily and customary chore.
Damages are not sought under part 1 of the compensation act. 1 Mason Minn. St. 1927, § 4261. Under that section damages may be recovered by the injured employe when the injury was caused “by accident arising out of and in the course of his employment, of which injury the actual or lawfully imputed negligence of the employer is the natural and proximate cause.” And if “the employe was himself not wilfully negligent at the time of receiving such injury” damages may be recovered. § 4262. If such were the basis for the present cause there might be reason for denial of recovery; but it is not. Compensation is sought and must be obtained, if at all, under part 2 of the act, § 4268, et seq. Under § 4269 it is provided:
“* * " compensation according to the schedules hereinafter contained shall be paid by every such employer, in every case of personal injury or death of his employe, caused by accident, arising out of and in the course of his employment, without regard to the question of negligence, except accidents which are intentionally self-inflicted or when the intoxication of such employe is the natural or proximate cause of the injury, * * *.” (Italics mine.)
So the only issue to be here determined is whether Anderson, at the time and place of accident, was upon or within the working premises of his employer, in the course of his employment and “within the hours of service.” In Simonson v. Knight, 174 Minn. 491, 494, 219 N. W. 869, 870, this court said:
“To accomplish the purpose of the law it must be held that, for the purposes of compensation, a workman is within the hours of service when, having put aside his oAvn independent purposes, he has entered the premises of his employer appurtenant to the place Avhere his service is rendered for the purpose of beginning such service immediately or within a reasonable time and is approaching the place thereof by an avenue customarily used by employes.”
See also Novack v. Montgomery Ward & Co. 158 Minn. 495, 198 N. W. 290; Lineau v. N. W. Tel. Exch. Co. 151 Minn. 258, 260, 186 N. W. 945.
It seems clear to me from this record that Anderson had entered upon his customary service. He had punched the time clock, as was his custom, was in the act of changing his clothes to begin his day’s work when the accident occurred, and was actually within and upon his employer’s working premises.
True, he knew that the mill had been fumigated the night before. But it is equally clear that he did not realize the dangerous qualities and lethal character of the gas employed. At other times when the mill had been undergoing such treatment other gases had been used neither lethal nor harmful to human life. If Ave eliminate from consideration the testimony of Turner and Rubishak as to con-Amrsations had Avith decedent, there is very little left upon which to hang a defense. So it seems to me we must determine Avhether these men, admittedly stockholders in the holding company OAvning the entire stock issue of the employer, are under the statute precluded from testifying to such conversations. In my opinion they should be so precluded. They have an interest that is direct and, to them at least, substantial. (Turner was the OAvner of 53 shares and Rubishak four out of a total issue of 82,231 shares.) The fact that the stock ownership of each is comparatively small as compared with the entire stock issue is not the basis for excluding such testimony under the statute. If these men had been the OAvners of 100 shares in such holding company as American Telephone & Telegraph Company and the proceeding was one where the same question arose as to it, or one of its Avholly owned subsidiaries, there can be little doubt that they would be precluded from testifying. There the OAvnership of 100 shares Avould be much less in proportion to the total issue outstanding than the interests possessed by these Avitnesses in the corporation here involved. The question should not, nor can it, be based upon the number of shares OAvned by an individual, but rather whether he himself has an interest of such importance that his testimony is likely to be influenced thereby. As humans Ave are all naturally SAvayed by interest. We think of ourselves first. These men cannot be differently classified. Even “the ox knoweth his OAvner, and the ass his master’s crib.”
The so-called instructions were verbal. The fact that they are labeled “instructions” cannot change the statutory rule against the admissibility of such evidence. That the trier of fact was. of the view that such testimony was essential to decision appears beyond question in the record. Mr. Turner while being examined in behalf of respondents, reference being had to the so-called “instructions,” was asked:
Q. “What instructions did you give him?
By Mr. Gleason: “Objected to as incompetent, the decedent being dead, and calling for a self-serving and privileged communication in view of the fact that Mr. Anderson is now dead» and we cannot controvert it.
By the referee: “Of course if you don’t permit this toitness to testify we will have no information on which to base a finding as to whether or not he was notified, and I overrule your objection.” (Italics mine.)
Then follows the statement of the witness that, “I gave Mr. Anderson instructions that we were going to fumigate with cyanide and not to come inside of the mill until he had instructions to come in.” And the witness Rubishak testified, while likewise being examined by respondent’s counsel:
“I told him, I said: ‘Mr. Anderson, you can’t go in the mill, there is gas in there, it is not ready to go in yet’; and he said: ‘I don’t care, I know what it is. I don’t worry about that.’ I got a hold of him by the shoulder and I pushed him back and I said: ‘For God’s sake, don’t go in, you know better than that’; and he said: ‘Oh, heck, I know what it is’; and he just shoved right in, and I just let him go in. I didn’t want to fight with him.”
If the qupted conversation were eliminated from his testimony, as it should be, then indeed there is little left upon which to base- a defense.
It is true, of course, that the circumstance respecting posted placards might be found sufficient to put Anderson on notice that there was something dangerous respecting the fumigation. But such proof would after all simply go to the question of lack of rea sonable care on his part or perhaps assumption of risk. These defenses are not under this statute permitted to stand in the way. Therefore, so it seems to me, the so-called “other facts” in the case, claimed to afford respondents an adequate defense, fall flat. The record is barren of anything suggesting “intentionally self-inflicted” injury or that its cause was founded upon “intoxication” of the employe.
With respect of Rubishak’s authority to act for his employer, the record discloses that he was only a night watchman, “temporarily at that time they were fumigating.” His authority as assistant foreman was limited to the warehouse. Anderson’s work was in the milling department, and as such he had nothing to do with Rubishak. In his testimony Rubishak said: “Very seldom I saw him come in because I was on a different crew altogether, in a different department.”
While not directly in point yet of persuasive value is Olson v. Robinson, Straus & Co. 168 Minn. 114, 210 R. W. 64, where the first syllabus paragraph reads:
“The compensation act is to be liberally construed to secure to employes the benefits intended, and an employe is not necessarily placed outside the protection of the act by disobeying an order.”
Cited under the syllabus in that case, 168 Minn. 114, are: “Workmen’s Compensation Acts, C. J. p. 40 n. 95; p. 86 n. 84 Rew; p. 115 n. 37. See notes in 23 A. L. R. 1166; 26 A. L. R. 166; 5 R. C. L. Supp. p. 1574 et seq.” To these should be added cases cited in annotations under workmen’s compensation, 58 A. L. R. 198, and 83 A. L. R. 1211.
As I read the record, if there was any violation of orders or directions by him it was while within the scope and sphere of his employment and as such not at all like Rautio v. International Harv. Co. 180 Minn. 400, 404, 231 N. W. 214, 216, where the employe had “deliberately, for purposes of Ms oivn, put himself in the danger zone.” (Italics mine.)
The rule stated in Kelly v. National Packing Box Co. 204 App. Div. 614, 616, 198 N: Y. S. 501, 502, seems applicable here:
“It is not the performance in a prohibited manner of the thing he is employed to do but the attempt, in disobedience of an order, to undertake something wholly outside of his line of duty, which breaks the relationship of employer and employe.”
And the supreme court of Wisconsin in Frint Motor Car Co. v. Industrial Comm. 168 Wis. 436, 170 N. W. 285, in the first syllabus paragraph said:
“A mechanic was given charge of his employer’s pit at automobile races, with instructions to work on the cars there and not to leave the pit. Contrary to orders he left the pit and stood upon the fence at the inside of the race track. While there, during a race, he saw one of his employer’s cars stop on the track a short distance aAvay. He ran toAvard it, but before reaching it was struck by an oncoming car and killed. Held, that he Avas at the time performing service growing out of and incidental to his employment, and that the mere fact that he had disobeyed orders did not preclude an aAvard of compensation for his death.”
The supreme court of Pennsylvania in Gurski v. Susquehanna Coal Co. 262 Pa. 1, 104 A. 801, in the first syllabus paragraph said:
“Where a miner met his death from noxious gases in a part of his employer’s mine to which he had gone to get tools with which to Avork, although he had been told not to go into that part of the mine, his death was the result of an accident occurring in the course of his employment within the meaning of the Workmen’s Compensation Act * ®.”
There are many other cases bearing upon this subject which to my mind should lead to a reversal. Only a feAv Avill be specifically cited here: Republic I. & S. Co. v. Industrial Comm. 302 Ill. 401, 134 N. E. 754; Nickerson’s Case, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790; Gray v. Industrial Accident Comm. 34 Cal. App. 713, 168 P. 702: McNicholas v. Dawson & Son [1899] 1 Q. B. 773.
Considerations of fairness and human experience induce me to believe that Anderson in good faith and Avithout knoAvledge of the hidden dangers created by the fumigation entered into and upon his employer’s premises and was within the scope and hours of service of his employment at the time of his asphyxiation. His widow should be allowed compensation.
Upon Application For Reargument.
On May 15, 1936, the following opinion was filed:
Stone, Justice.
Relator’s petition for rehearing is denied, but it has lead to a careful reexamination of the record in the light of the diligent and searching argument advanced in support of the petition.
We consider our former decision right in deciding the case as matter of law. But assuming, solely for the purpose of argument, that the determinative issue ivas not susceptible of decision as matter of law, the case is in this status:
It has been once remanded to the industrial commission for a rehearing, or an additional hearing, upon the argument that the incompetent evidence had been admitted. Upon a motion on that ground a rehearing was denied. But the point must have been considered by the commission notwithstanding, and, unanimously, their original decision denying compensation was adhered to.
Hence, even though now we did not pass upon the determinative question as one of law, we would yet be confronted ivith the question whether the commission’s findings are “based only upon competent evidence.” 1 Mason Minn. St. 1927, § 4313. The admission of the incompetent evidence having been explicitly considered and the commission having adhered to its decision, we would be unable to say now that it ivas based upon other than the ample competent evidence that is in the record to support it.
The statute, 1 Mason Minn. St. 1927, § 4313, is somewhat anomalous in that it declares that the commission “shall not be bound by common law or statutory rules of evidence,” and yet requires that their findings “be based only upon competent evidence.” We construe that to mean that, whatever incompetent evidence is admitted by the commission in violation of “common law or statutory rules of evidence,” yet, where the incompetence of some of the evidence has been particularly pressed upon the commission upon a motion for rehearing, we cannot say, where there is so much competent evidence as there is here in support of their decision, that it was not based solely thereon.
