On Rehearing.
An able and exhaustive motion for rehearing has been filed by appellant which deserves, and has received, careful consideration. We perhaps did not use apt words in expressing our holding in' the original opinion, as same seems to have been misunderstood by appellant’s counsel. We therefore deem it advisable to write further.
It is contended that, by the express terms of article S309, § 1, quoted in our original opinion, Shook did not sustain his injuries in the course of his employment. The argument seems to be that the decision by the Commission of Appeals in the Yivier Case, from which we quoted, is wrong. This contention, we think, comes from an improper interpretation of the meaning of the words employed in that sectión. To make our thought plain,, we again quote it and'italicize certain words: “An injury caused by an act of a third person intended to injure the employee because of reasons personal to Mm and not directed against Mm as an employee, or because of Ms employment.”
It will be noted that there are three personal pronouns in this sentence. Appellant construes the sentence as though the first “him” has for its antecedent “a third person,” and the second “him” and- also “his” have for their antecedent “the employee.” Thus construed, its contention would probably be correct, for,- unquestionably, Clyde Thompson murdered Lucien Shook for the purpose of robbery. • That was a reason personal to Clyde Thompson. We know of no rule of grammatical construction that would not give the same antecedent to each of those three personal pronouns. At any rate, the language is susceptible of that construction. Being so susceptible, it is our duty thus to construe it, for any other construction would be contrary to the purposes of the legislation as a whole. If an employee under the Workmen’s Com*429pensation Law is employed as a night watchman at a bank, and robbers, for the purpose of making an entry into the safe, murder him, such act on the part of the robbers might be said to be personal to them in the sense that they did it to further their own purpose of robbery, but clearly the beneficiaries of the deceased watchman would be entitled to compensation. He was killed because he was a watchman, and, therefore, because of his employment, and not because of some malice harbored by the robber against him personally. This is a comparable case.
It is argued that we went far afield in holding that Shook was in the course of his employment while hunting wolves. These interrogatories are propounded to us in the motion: “If Shook had taken his girl to a dance some half mile from the premises, and while dancing a third person, with an intent of killing someone else, had shot a.pistol and Shook had been accidentally hit and killed, would he have been engaged in the course of his employment at the time he was killed? Or, suppose he had been at such place engaged in playing poker and while so engaged had been killed, or suppose he had been at such place engaged in a drinking party or dinner party or playing base ball. Those undertakings might have afforded some exercise or amusement or pleasure to Shook. Yet, we doubt if it would, in either of such instances, be seriously contended that Shook would have been engaged in the course of his employment.”
The facts stated in the interrogatories are not in sufficient detail in each instance for us to answer them categorically. But we shall undertake again to try to make our position plain. Shook actually labored at the well but a few minutes during each twenty-four hours, if we regard labor to mean only the oiling of the engine. He was employed to stay within hearing distance of the pump, with liberties to go to town when desirable. We are not called upon to pass on the status of the employee while beyond hearing distance from the pump. So long as he was there within hearing distance, ready to go to the well when called thereto by observing that the engine had stopped performing, he was in the course of his employment. The logical conclusion of appellant’s argument is that he was on employment only when he was actually at work. Under the strict construction which it employed he was not on duty while sitting in his shack listening to the engine. Our view is that, so long as he was in a zone where he could hear the engine and was in a position where he could go to it when occasion arose, it could make no difference whether he were sitting quietly in his shack, sleeping, eating, exercising, dancing,playing cards, or doing anything else. Of course, if the dancing, card playing, etc., afforded the reason for his being murdered, a different case would be presented. Suppose he and his brother had been dancing ofi playing cards together or with others in the shack when these boys came up and Thompson had then shot him for the purpose of robbery. Should that fact operate to deny- a right of recovery? We think not.
Shook’s employment was analogous to that of a driver of a fire truck. He spends twenty-four hours per day in and around the fire station to be in readiness to go to a fire when an alarm is turned in. Could it be reasonably and justly contended that such fireman would not be in the course of his employment while playing games in the fire station or playing croquet or baseball on the outside within convenient distance thereof and within hearing of the gong? Surely not. The same reasoning that would exclude Shook under the facts of this case would likewise exclude the fireman under the facts of the suggested case.
The motion will be overruled.