I concur in the result, and in the holding that the claimant, when injured, was not doing his employer's work, but doing something in his own way — *Page 125 and a way not permitted by his employer — and for his own benefit, and hence his injury did not arise out of his employment.
I agree with the doctrine of Keen v. St. Clement'sPress, Ltd., 7 B. W. C. C. 542, and McNicol's Case,215 Mass. 497, 102 N.E. 697, as cited, in their holding that the terms arising "in the course of the employment" and arising "out of the employment" are independent and conjunctive terms.
I do not concur generally in the opinion through my fear that it confounds these terms and treats and holds them to be equivalents. And further, because I fear that the opinion holds that the claimant was not at the time of his injury in the course of his employment, and I am of the opinion that he was, and that his momentary departure from his work to do something for his own benefit, although permitted by his master so to do yet done in a manner and place not permitted, did not take him at the time of his injury out of the course of his employment. The authorities seem to support this view. Moore v. Manchester Liners, Ltd., L. R. (1910) App. Cas. 498, 500; Fitzgerald v. Clarke Son (1908), 99 Law Times Rep. 101, 1 B. W. C. C. 197, 201;Robertson v. Allan Bros. Co. (1908), 98 Law Times Rep. 821, 1 B. W. C. C. 172; Sundine's Case,218 Mass. 1, 105 N.E. 433; Bryant v. Fissell, 84 N.J.L. 72,86 A. 458, 460. *Page 126