delivered the opinion of the court:
This was a proceeding before the Industrial Board of Illinois under the Workmen’s Compensation act to recover for the injuries causing the death of Jens Christensen, received on the' night of December 19, 1914, while in the employ of plaintiff in error. The committee of arbitration, after hearing the evidence, made an award in favor of the applicant, the widow. Qn petition for review before the Industrial Board the finding of the committee of arbitration was affirmed, and it was adjudged that applicant was entitled to receive from plaintiff in error the sum of $31 a month for ninety-six months from December 23, 1914, the date of Christensen’s death. The circuit court, on the case being taken there on writ of certiorari, affirmed the judgment of .the Industrial Board. The trial judge having certilled that the cause was one proper to be reviewed by this court, it was thereafter brought here by writ of error.
On the hearing before the Industrial Board it was agreed between the parties that both the deceased and the plaintiff in error were working under and subject to the Workmen’s Compensation act.
The deceased was sixty-six years old. He had been employed for four years as fireman and night watchman by plaintiff in error in the Ohio building, at the southeast corner of Wabash avenue' and Congress street, in Chicago. His custom was to come to his work at about a quarter to six in the evening and to leave at about the same hour in the morning. He left a widow and eight children, all of age except one. Three of the children were living with their parents at the time of the injury. The Ohio building has 160 feet frontage on Wabash avenue and go feet on Congress street and contains four stories and a basement. The three upper stories were occupied by various dealers in books, a school of music, a portrait company, and other offices. On the first floor there were a number of stores, some fronting on Wabash avenue and some on Congress street, and the Moffett Photographic Studio was in the rear of the building, fronting on the latter street. The north half of the basement was occupied by the Kercher Turkish Baths. The boiler room was in the southeast corner of the basement. The main entrance was located on Wabash avenue, opening on the first floor into a wide corridor running east and in which were located the passenger and freight elevators and a stairway leading to the upper floors. In the back hall was an iron stairway leading down into the basement. There was also a stairway in the front end of the corridor on the first floor, leading to the basement. As we understand the record there was no entrance to the basement directly from Wabash avenue or Congress street, but there was an entrance directly from Wabash avenue into the rooms of the Kercher Baths, and through them, by doors opening into the Kercher Baths, one could reach the corridor in the basement, and this was the only way to get into the basement of the building except from the stairways on the first floor. There was a corridor running east and west through about the center of the basement. The Kercher Baths were entirely north of this, and the store rooms, boiler room and other rooms south of it. There was another corridor toward the west end of the basement, running north and south from the foot of the iron stairway to the boiler room, a distance of a little over 40 feet. The boiler room was about three feet below the rest of the basement, with three steps leading down to it from the south end of the last mentioned corridor. At night the only lights usually lit in the basement were one at the foot of the iron stairway and those in the boiler room. The office portion of the building was closed at seven o’clock every night and the doors at the Wabash avenue entrance were then locked. There were no elevators run after that hour and no janitors in the building. The only person thereafter working, outside of the Kercher Baths, was the deceased. While he looked after the building it does not appear that he made regular rounds. He was supposed to see that the Wabash avenue doors were closed and locked and the windows on the upper floors closed and the lights through the building extinguished. He was also supposed to go into the Moffett Studio, at the rear of the corridor on the first floor, and turn on an electric light early in the evening to furnish a window display and an hour or less before midnight to switch this light off. The light was switched off on the night in question. It is said that about midnight it was customary for him to go out and get a bucket of coffee. There is evidence in the record that on the night in question at about that hour he went to a restaurant near by for that purpose. No one knew his custom with respect to locking or unlocking the Wabash avenue doors on the first floor when he went" out. About 12:30 o’clock on the night in question the foreman in the Kercher Baths noticed that the steam was getting low and attempted to communicate with Christensen through a speaking tube reaching to the boiler room, to ask him to furnish more steam. No response could be obtained, and thereupon a colored porter, Jackson, was sent to look up the deceased. On reaching the three steps leading down into the boiler room he saw deceased’s lighted lantern, and a moment later the deceased himself sitting on a chair in the boiler room, dazed and in a seriously injured condition, his head and face being very bloody and a pool of blood on the ground beside him. Jackson at once called to another of the bath employees (Maurer) that someone had “killed the night watchman.” The foreman and another employee of the bath rooms were called and shortly thereafter Christensen was assisted into the bath rooms, where the blood was washed off his face and he was cared for temporarily. Some of the employees talked to him, and when asked how he got hurt he replied in a fragmentary way, “I hurt my head,” “I am awful sick,” “I can’t do anything at all.” Policemen were sent for, and when they came they asked his name, and he answered “Jim,” as they understood him. He also stated that he had hurt himself,—that he felt sick. The day engineer, Hinckley, was sent for and reached the Ohio building shortly after one o’clock in the morning. At that time the deceased was in an ambulance about to be removed to a hospital. Hinckley examined the building and testified that he found in the north and south corridor leading from the iron stairway to the boiler room a pool of blood, a spilled coffee bucket, deceased’s cap and a gas pipe about four feet long. Hinckley went with a police officer and they found blood on the iron stairway leading up to the first floor of the building and a slight trail of blood led to the door from Moffett’s Studio, that door being found open. Spots of blood were also observable in the studio. Hinckley stated, in answer to a question, he thought that after the deceased regained consciousness and found how badly he was hurt he had gone up-stairs to the studio intending to telephone, as he usually used that telephone when he wanted to communicate with anyone outside, and that he thereafter went back to the boiler room, where he was found. The deceased’s key ring, which usually contained sixteen keys, was never found. This key ring was carried by Hinckley during the day and contained keys to the entrance doors and various rooms in the building. Hinckley had separate keys to the Wabash avenue entrance, and when he went to let the policemen out at that entrance was surprised to find they had entered that door when they arrived, it being then unlocked. There was no evidence that an attempt had been made to break into any of the stores. The deceased had been paid off a few days before and had the greater part of his half month’s wages on his person when he went to work that evening. After his injury only ten cents was found on him, and an Ingersoll watch which he carried was missing. Hankes, one of the employees of the bath rooms, testified that about a quarter to twelve that night, while he was cleaning a bath tub which stood about four feet from the door leading into the basement corridor where the blood was found, he heard some footsteps, which seemed to be going towards the boiler room. He testified that shortly thereafter he heard a crash,—a heavy fall, like an armful of wood being thrown down on the cement floor,—and a second or two later heard a piece of metal strike the floor, ringing out clearly and apparently from the corridor between the stairway and the boiler room, at about where the pool of blood and gas pipe were afterwards found. He also said that the sound appeared something like the breaking of glass or a bucket falling ; that about a minute or two afterwards he heard what might be compared to a rattle of a bunch of keys and then footsteps coming rapidly toward him and going up the stairs, the keys still rattling. No other clews in connection with the injury to the deceased were ever discovered. The testimony is to the effect that deceased was of a peaceable disposition and was not known to have an enemy. The injury from which Christensen died was described by a physician as being an extensive fracture of the skull, extending from before, backward, through the frontal and parietal bones on the right side and transversely through the frontal bone and extending to the base, and the physician stated that death was due to intercranial hemorrhage and fracture of the skull from external violence.
Counsel for plaintiff in error first insist that the burden of proving the essential facts necessary to establish a case rests upon the party petitioning for relief under the Workmen’s Compensation act, and that the claimant in this case did not make such proof. Without question the burden does so rest upon the claimant to show by competent testimony not only the fact of the injury but that it occurred in connection with the employment of the deceased. (Hills v. Blair,
Counsel for plaintiff in error argue that the ■ injuries from which Christensen died may have been caused by an accidental fall, and that if he fell because of sudden illness plaintiff in error would not be liable. We do not think that the evidence in any way warrants the conclusion or inference that the injury was caused by a fall. The evidence showed that the deceased had been in good health; that he had just returned from a restaurant where he had obtained a pail of coffee for his midnight lunch, and no inference could fairly be drawn that he became sick and the injury resulted from his sudden illness. It was practically impossible to have fractured his skull by an accidental fall in the manner that it was fractured, and there was no proof offered or suggested in the record as to any way in which his skull could have been fractured by a fall, especially without leaving some other marks of injury upon his person, and none were found. The facts that the deceased’s money and his watch were taken and that his keys were also taken point directly to the fact that some person made the assault and took these articles. On no other theory can these facts be explained. The evidence shows that the gas pipe was found near the spot where he was evidently assaulted, and while there was no evidence of blood, flesh or hair on it, that is readily explained by the fact that deceased wore a cap, which would prevent the pipe from coming in direct contact with his head. The fact that the front entrance was open after the accident tends to show that some person had used that entrance in making his escape. The testimony of the witness Hankes that he heard, at about the time that the assault must have taken place, footsteps, a crash and heavy fall, and immediately thereafter the sound of some metal falling on the floor, then the rattling of keys and footsteps coming back up the corridor and up the stairs, is consistent with the theory of assault and with no other theory, in view of the other facts proven on this record. The Industrial Board is not permitted, any more than a court or jury, to speculate and in a sense guess between causes when no reasonable explanation of the injury can be found in the testimony, but the absence of direct testimony and the simple suggestion of theories do not necessarily prevent the tribunal hearing the cause from determining the cause of the injury complained of. “The theories suggested may be forced and fanciful, finding no reasonable foundation-in the facts proved. They may be explanations which do not explain; which the common sense of the jury, when applied to the testimony, would instantly reject.” (Wabash Screen Door Co. v. Black, 126 Fed. Rep. 721.) We think the theories and explanations of counsel as to the cause of injury other than assault are unreasonable, forced, and not in accord, in any way, with the evidence. The coroner’s verdict was introduced on the hearing, in which it was found that the deceased came to his death from intercranial hemorrhage, “a fracture of the skull by external violence, the result of being assaulted and struck on the head by an iron pipe held in the hand of some person whose name to the jury is unknown, in the Ohio building,” etc. This evidence was competent and was alone sufficient to make prima facie proof of the fact of such assault. (Grand Lodge I. O. M. A. v. Wieting,
Counsel for plaintiff in error admit that on this record the inference that deceased was feloniously assaulted is much stronger than any other theory or inference as to the cause of his injury, but they argue that the proof is as consistent with the inference that he was assaulted for personal reasons which had no relation with his employment, as is the inference that the assault arose out of and in the course of such employment. As we understand the briefs, counsel for both parties to this litigation concede that the real question is, “Was Christensen assaulted because he was Christensen, or was it because he was the night watchman of the building?” Even though the assailant was a personal enemy of the deceased, plaintiff in error would still be liable if the assault was made because he was the night watchman, engaged at the time in the duties of his employment. There is, however, no proof in the record that justifies any conclusion that the assault was made by a personal enemy, to avenge a personal wrong or for reasons purely personal to Christensen. On the contrary, all the evidence tends strongly to prove that the assault was made upon Christensen because he was the night watchman of the building, engaged at that time in the line of his duties.
Counsel for plaintiff in error argue at length and with great earnestness, citing many authorities, that the injury did not arise out of the employment. It is a matter of common knowledge that in office buildings, mercantile establishments and other large buildings in great cities such as Chicago, night watchmen are employed. One of their most important duties is that of guarding the premises from trespassers, thieves or night prowlers.' Many such persons are known to be desperate, and employees whose duties expose them to contact with them must necessarily incur the danger of being assaulted by them. The owner of this building testified on this hearing that in case of burglary of any kind he would have expected the deceased to protect the property. The proof also shows that one of the stores in the building had been' broken into during the August preceding this fatal injury. The question whether a risk arises out of and in the course of the employment does not depend on whether such risk is more than the ordinary normal risk incurred by other persons, but on whether the risk is one peculiar to that particular employment. Employees engaged in each particular employment are exposed to certain risks that are almost necessarily peculiar to that employment. Whether the risks or dangers of any particular employment are greater or less than the risks of other employments is not essential to be decided in determining whether the risk of a given employee grows out of his employment. In the case of Andrew v. Failsworth Industrial Society, (1904) 2 K. B. 32, a workman was killed by lightning. In discussing that case it was stated that any man may be struck by lightning, and in many circumstances this will not entitle him to compensation. If, however, the nature of his employment exposes him to more than the ordinary normal risk, the extra danger to which the man is exposed is something arising out of his employment. In that case a workman killed by lightning while working on a high scaffold was held to have met his death by an accident arising out of and in the course of his employment. In Nisbet v. Rayne & Burn, (1910) 2 K. B. 689, the cashier for a colliery company was murdered and robbed while traveling in a railway train in the line of his employment with money to pay his employer’s workmen, and it was held that the injury and death arose out of and in the course of his employment. In Anderson v. Balfour, (1910) 2 L. R. Ir. 497, it was held that the risk of injury and death at the hands of poachers was incidental to the employment of a game-keeper. In Weekes v. Stead, (1914) W. C. & Ins. Rep. 434, the yard foreman of a firm of furniture movers was assaulted in the yard by a man who was employed by the firm at times to do odd jobs. The main duty of the foreman was the hiring of such men. The evidence showed that the assault was made because of a dispute between the foreman and this man about the work of the company. The company was held liable for the assault. In Trim Joint School v. Kelly, (1914) W. C. & Ins. Rep. 359, a teacher in an industrial school was assaulted by a number of pupils and received injuries which resulted in his death. It was held by the majority of the court that the injury arose out of and was in the course of the employment. To the same effect is Emmert v. Trustees of Preston School of Industry, 1 Cal. Ind. Acc. Com. Dec. (No. 4, 1914,) 17. In the case of In re McNichoi’s case,
Counsel for the plaintiff in error rely upon Walther v. American Paper Co. 99 Atl. Rep. (N. J.) 263. In that case a night watchman in a mill, while making his rounds, was struck over the head and killed by an employee of the same company, who had entered the mill and hid himself without any intent to rob the mill office or to commit any other crime except to rob the deceased, who he knew had been paid off that day. It was held that the watchman’s death did not arise out of his employment. In that case the proof was clear that the attack was personal upon the night watchman and not for any other purpose. The facts here strongly tend to show that the assault was made upon the deceased for other than personal reasons, and that the taking of his money and watch was a mere incident to the assault upon him for other reasons.
Counsel for plaintiff in error also rely upon the reasoning in the two cases of In re Harbroe, 111 N. E. Rep. (Mass.) 709, and Schmoll v. Weisbrod & Hess Brewing Co. 97 Atl. Rep. (N. J.) 723. We think those cases are clearly distinguishable, on the facts, from this case, and while some expressions are found in those two opinions tending, to uphold the reasoning of counsel for plaintiff in error in this case, we do not think such reasoning can control here. The deceased, because of his employment, was required to guard the building from trespassers or other intruders, and on this account he necessarily might have to deal with persons more or less regardless of the rights of others. Those required to deal with such persons run a risk of encountering violence. Under the evidence in this case the injury is fairly traced to the employment of the deceased as the proximate cause,—an injury which came from a hazard to which Christensen would not have been equally exposed apart from his employment. The danger of this injury was peculiar to his line of work and not common with all other kinds of employment. We are not intending to hold that any assault on an employee while in the discharge of his duties arises out of his employment. Such an assault only arises out of his employment in a case where the duties of the employee are such as are likely to cause him to have to deal with persons who in the nature of things are liable to attack him. In this case we think the evidence is consistent with the theory that the motive of the" assailant was not only to rob the deceased but to burglarize the premises, and the fact that he did not break into any of the stores or take any property except from Christensen’s person is not inconsistent with this conclusion. It is not unlikely that the intruder expected to burglarize the premises but unexpectedly came upon or was discovered by the watchman, and assaulted him without previously planning to do so if they did not meet. He may have been frightened away by the commotion at the time the deceased was found by the employees of the Kercher Baths, or may have taken the keys of the building with the intention of burglarizing the building at some future time. The evidence does not show that the attack was made upon Christensen for reasons purely personal to him.
Counsel for plaintiff in error argue that one presumption cannot be based upon another presumption; that while it is highly probable that Christensen was murdered, that presumption or inference, however strong, is only an inference ; and that upon the inference that he was murdered the court cannot base another independent inference that the murder was committed under such circumstances as to make it an injury arising out of his employment, and that therefore the finding of the Industrial Board cannot be sustained. We do not agree with the conclusion of counsel for plaintiff in error that the inference that Christensen’s injury arose out of and in the course of the employment is founded solely, or largely, on the inference that he was murdered. “The terms ‘inference,’ ‘probability,’ ‘assumption’ and ‘presumption’ have substantially the same meaning and import as used in legal writings and opinions. Attempts have been made from time to time to draw distinctions between certain of these terms, but legal as well as common parlance recognizes no such refinements of meaning.” (10 R. C. L. 867, 868.) Counsel use in this case the words “inference” and “presumption” interchangeably. It is true that courts have frequently stated that a presumption cannot be based upon a presumption or an independent inference on another inference. (United States v. Ross,
We have not attempted to discuss or even refer to many of the decisions cited by counsel in the briefs. We have referred to some of those that we thought were the most in point on the facts here presented. Any attempt to discuss in detail all of those cases would be of no special advantage to either party and would unduly lengthen this opinion.
The judgment of the circuit court will be affirmed.
Judgment affirmed.