I dissent. The majority opinion properly concedes that the gunshot wound which resulted in the death of the deceased employee, Goytan, arose out of the employment. But the going and coming rule is applied and it is held that the injury was not received by the decedent while "performing . . . service incidental to" the employment and that he was not "acting within the course of his employment," as contemplated by the Workmen's Compensation Act. This holding is contrary to the finding of the Industrial Accident Commission and, in my opinion, is based upon the erroneous conclusion that the evidence does not support the finding. It is an undisputed fact that an industrial warfare was in progress in which the employer was involved. The decedent had been visited by strikers and had been warned to quit work or suffer the consequence. He continued in service with the knowledge and consent and impliedly at the instance of the employer. The majority opinion further concedes that there was ample evidence that the injury was inflicted by strikers. Under these circumstances I cannot escape the conclusion that the assault and the attendant death were incidental to the employment without which the injury would not have happened. Except for the employment there would have been no incentive on the part of the strikers to punish him for remaining in the service of his employer and to cripple his employer by injuring him. Under the circumstances existing at the time the street became for the decedent a special zone of danger solely because of the employment. In going and coming from his work the decedent assumed a risk for the benefit of his employer, reasonably to be contemplated, special and temporary in character, and not shared by the commonalty in the use of the streets. These considerations, which seem to me to be incontrovertible, would sustain the finding of the commission. (See San Diego etc. Co. v. Industrial Acc. *Page 570 Com., 193 Cal. 341 [223 P. 972]; Globe Indem. Co. v.Industrial Acc. Com., 193 Cal. 470 [225 P. 273].) The case ofLampert v. Siemons, 235 N.Y. 311 [139 N.E. 278], mainly relied upon by the majority, runs counter to the liberal construction enjoined upon the courts of this state by the Workmen's Compensation Act and as actually applied by this court. The reasoning and conclusions of the appellate division of the supreme court of New York in the same case (Lampert v.Siemons, 203 App. Div. 264 [197 N.Y. Supp. 25]) are more in harmony with the administration of the law in this state. This court, on June 2, 1927, in the case of Fidelity Casualty Co. v. Industrial Acc. Com. (L.A. No. 9884), denied without opinion a petition for a writ of review and denied a rehearing in the same matter on July 2, 1927. In that case the finding of the commission was that the deceased employee was performing service growing out of and incidental to his employment at a time when he was playing pool for his own amusement in a public pool-hall and was stabbed by a discharged and disgruntled fellow employee. The injured employee had been instructed by his superior to notify the other employee of the latter's discharge from service. The injured employee went out to hunt for the other. The discharged employee heard of his fellow employee's mission, saw him in the pool-hall, and stabbed him. We concluded that the employment exposed the injured employee to a special risk arising out of and in the course of his employment wherever he might be. I entertain no doubt of the correctness of our conclusion in that case, and the same theory of the law should be applied to the facts in the present case. It is freely admitted by the majority opinion that the going and coming rule is properly subject to exceptions, depending on the facts in each particular case. In my opinion the present case presents a well-defined exception to the general rule.
Richards, J., concurred.
Rehearing denied.
Richards, J., and Shenk, J., dissented. *Page 571