Edelweiss Gardens v. Industrial Commission
125 N.E. 260
Ill.
1919
Check Treatment
Mr. Justice Farmer

delivered the opinion of the court:

Joseph.Brill, employed as a waiter by plaintiff in error, the Edelweiss Gardens, died August i, .1917, from injuries received the same date in a fight with another employee of plaintiff in error. Brill left surviving him a widow and three children. His administrator made application for compensation for his death under the Workmen’s Compensation act, claiming the parties were operating under that act and that Brill died from accidental injuries which arose out of and in the course of the employment. The arbitrator fixed the award at $4.45 per week for 41,6 weeks. On review by the Industrial Commission that body found the applicant was entitled to an award, and ordered plaintiff in error to pay $25 semi-monthly for a period of eighty months until the sum of $4000 had been paid. On certiorari to the circuit court the award was confirmed, and that court certified the case was a proper one to be reviewed by the Supreme Court.

Plaintiff in error contends (1) that it was not engaged in an‘extra-hazardous enterprise and was not subject to the Workmen’s Compensation act; (2) that Brill was not engaged in extra-hazardous work; (3) that Brill’s injury did not arise out of and in the course of his employment. We are of opinion the injury which caused Brill’s death did not arise out of and in the course of his employment and will therefore not discuss the other propositions.

Joseph Brill at the time of his injury, August 1, 1917, and prior thereto, was employed as a waiter by the Edelweiss Gardens, which was engaged in the business of serving food and refreshments to the public and providing entertainment for its patrons. Food was served on tables provided for that purpose in what was called the restaurant and garden. In the same place there was also dancing. The kitchen was in the basement and was reached from the restaurant by means of a sloping floor or runway with no stair steps. To get and serve the food waiters passed to and from the basement kitchen over the runway. Brill’s employment and duties were to get food from the kitchen and serve it on the tables to customers in the restaurant. In addition to the waiters employed to serve the food there were also employed bus boys to put ice, butter, glasses and silverware on the tables,' called “making a set-up.” Sometimes when the crowd was large the bus boys assisted in carrying out dishes. R. K. Pruyn was the superintendent. Fred Ashford was employed as a bus boy. On the evening of August i, 1917, Ashford moved a tray which had some bread on it and was putting it in the tray box when Brill observed what he was doing and told him the bread was too good to be thrown away and ought not to be wasted in that manner. Ashford replied that he was acting under orders of the manager and proposed they go to the office to see the manager. They started for the manager’s office, to reach which they had to pass along the runway. Ashford testified he was in front of Brill when they passed Pinkey Lee, another bus boy. Brill and Lee engaged in an altercation. Ashford did not know how they came to engage in a fuss. He heard Brill halloo and saw him turn and run back. Ashford said “it all happened at once.” Brill was hit on the side of the head with something, — probably a platter, — which fractured his skull. He was taken to a hospital and died the same night. George Brand testified he was a waiter at the Edelweiss Gardens at the time of Brill’s injury; that he was ten or twelve feet from where he was struck; that suddenly he saw a china platter fly and heard Brill scream; that he went to Brill and saw the right side of his head was red; that he asked Brill what was the matter but received no answer; that Brill went down to the basement and the house officer ordered him out. George Hoeger testified he was a waiter at the Edelweiss Gardens and knew Brill. He saw he had trouble the night of August i “with them bus boys and how the bus boys went and hit him.” He said Pinkey Lee hit him with his fist while he was walking down the incline to the kitchen.

Brill and Lee had no connection with or authority over each other in the discharge of their respective duties, and there is no proof to show that the altercation between them grew out of the manner of performing their work or had any connection with it. It does not appear that Lee was present when Brill spoke to Ashford about the bread. As Ashford and Brill were going to the manager’s office Brill and Lee met, there was a sudden altercation between them and Lee struck Brill.- It is not sufficient that an accidental injury occur in the course of the employment but it must arise out of the employment. (Mueller Construction Co. v. Industrial Board, 283 Ill. 148.) It is sometimes difficult to determine whether an accidental injury arose out of the employment. This court has in the case last referred to, and in other cases, quoted with approval from McNicol’s case, 215 Mass. 497, what the Supreme Court of Massachusetts said on this subject, the substance of which is that an injury may be said to arise out of the employment when there is apparent to the rational mind, from the circumstances, a causal connection between the conditions under which the work is performed and the injury. If the injury can be seen to have been a natural incident of the work and to have been contemplated by a reasonable person as a result of the exposure occasioned by the nature of the employment it may be said to arise out of the employment. An injury not fairly traceable to the employment as the contributing proximate cause and which comes from a hazard to which the employee would have been equally exposed apart from the employment does not arise out of the employment. The causative danger must be peculiar to the work and incidental to the character of the business. This court has sustained an award for an injury to an employee received in a fight with another employee which was not a mere personal matter but grew out of a quarrel over the manner of conducting the employer’s business and where the evidence tended to show the injured employee was not responsible for the assault. (Pekin Cooperage Co. v. Industrial Com. 285 Ill. 31; Swift & Co. v. Industrial Com. 287 id. 564; Chicago, Rock Island and Pacific Railway Co. v. Industrial Com. 288 id. 126.) An accident to be within the Workmen’s Compensation act must have had its origin in some risk of the employment. There is no proof that the difficulty between Lee and Brill had its origin in or any connection with their employment. The proof is as consistent with the theory that it had no such origin or connection but resulted from a previous feud or ill-feeling between the two men, as it is with the theory that the quarrel or altercation grew out of the manner of conducting the business in which they were employed. It was incumbent upon the defendant in error to prove the accident arose out of the employment by direct and positive evidence or by evidence .from which such inference could be fairly and reasonably drawn. (Ohio Building Vault Co. v. Industrial Board, 277 Ill. 96; Wisconsin Steel Co. v. Industrial Com. 288 id. 206.) “Liability cannot rest upon imagination, speculation or conjecture, — upon a choice between two views equally compatible with the evidence, — but must be based upon facts established by evidence fairly tending to prove them.” Peterson & Co. v. Industrial Board, 281 Ill. 326.

There being no evidence to sustain the award it will be set aside, the judgment of the circuit court reversed and the cause remanded.

Reversed and remanded.