I dissent. The finding herein—that the injuries sustained by the respondent arose out of and in the course of his employment—purporting to be based upon the evidence presented, is in reality not a finding of fact but a conclusion of law (Hines v. Industrial Acc. Com., 184 Cal. 1 [192 P. 859, 14 A.L.R. 720]), and therefore not subject to the strict rule of the Labor Code as found in section 5953. (Crown City Lodge v. Industrial Acc. Com., 10 Cal.App.2d 83 [51 P.2d 143].)
The petition for the writ presents a jurisdictional question arising from the interpretation to be given a document—a “courtesy pass”—which permitted the employee to ride at will on petitioner’s municipal street railway. The vital question is whether the issuance of such a pass under its “terms and conditions” is legally sufficient to constitute it “an incident of employment” as “a condition of employment” warranting an award for injuries sustained while riding on a street car under its authorization after all duties of the employee had temporarily terminated.
It is not contended that in the Civil Service Classification of Conductors and Motormen any mention is made of a “courtesy” or “free” pass as an attribute of employment *255or as part consideration, for the performance of duties. From the record and from the judicial knowledge that the court may take of charter provisions it is not in law or in fact an integral part of the contract of employment. It was admitted during the argument that other means of transportation were available, and that the respondent made a voluntary selection of the particular transportation facility herein involved. Whether he boarded the car at the barn or a short distance away the respondent testified he could not remember.
The pass entitled the holder thereof, in the course of employment, to ride free of charge at any time, without restriction, on any streetcar or bus belonging to the Municipal Railway, regardless of whether he was bent on business, pleasure, or a personal mission.
The evidence preponderates that the issuance of the pass was not “a condition of employment”; but the commission inferentially found to the contrary. The finding was based upon the affirmative answer of one witness to—be it said in passing—a leading question calling for a legal conclusion that badges and passes “had been an accepted condition of employment.” Assuming the statement could be accepted by the commission to be correct as to employees generally, still there was no evidence that the applicant herein agreed to work upon such a stipulation or understanding. The applicant testified that he could have been employed without the issuance of the pass; that it was not an essential part of his employment.
That the pass is not “a condition of employment” is demonstrated by its terms, which include a waiver of liability and a statement that it “is issued as a courtesy and not as part of consideration for employment,” to employees or “other person named on face.” It may be issued to former employees on pension, to officials and employees of other branches of the city government, to nonofficials and to non-employees, and, if deemed proper, to nonresidents and persons connected with branches of a railway not connected with the city government.
Assuming that the commission could ignore the fact that it could be issued to “others” and conclude that the “courtesy pass” was “a condition of employment,” the facts of the case do not fall within the rule enunciated in California Cos. *256Indem. Exch. v. Industrial Ace. Com., 21 Cal.2d 461 [132 P.2d 815], applied to the facts there presented. The street car was not “furnished by the employer to the employees for the purpose of transporting them to. and from work” (p. 463). It was “merely an accommodation that they might use or not as they wished” (pp. 463-464). There is no evidence that “the employee regularly used that transportation” (p. 464) and no evidence that the transportation was supplied “as a regular practice” (p. 464) or, as held in the cited case “solely because of her status as an employee” (p. 465). It is a self-evident fact that streetcar transportation could not be furnished to the last crews finishing their duties at night, or the first crews to report in the early morning, and hence could not be a “feature or detail of the contract” (p. 465).
This appears to be the first time that the California Industrial Accident Commission has determined that a “courtesy pass” is “a condition of employment.” There seems to be some diversity of opinion as to whether an employee riding free on transportation facilities of an employer may, under the provisions of an industrial accident act, claim compensation for accidental injury. Up to this time California has followed the so-called New York rule, to which many other jurisdictions have adhered. (Campbell, Workmen’s Compensation, see. 178, pp. 167-168, citing authority therefor.) To come within the rule established in California, the transportation must be assumed to be part of the contract of employment and “courtesy rides given by the employer do not give rise to liability under the statutes.” (Trussless Roof Co. v. Industrial Acc. Com., 119 Cal.App. 91 [6 P.2d 254], citing Boggess v. Industrial Acc. Com., 176 Cal. 534 [169 P. 75, L.R.A.1918F 883].)
Smith v. Industrial Acc. Com., 18 Cal.2d 843 [118 P.2d 6] is a case involving the use by an employee of a truck, belonging to his employer, in traveling from his place of employment. Under the facts of that case the court determined that the applicant was entitled to an award, but differentiated the facts of that case from those of cases wherein the employee was riding as a matter of “courtesy.” In discussing “incident of employment,” etc., quoting from Trussless Roof Co. v. Industrial Acc. Com., supra, the court said (p. 847): “ ‘The use of the words “as such” is necessary because *257courtesy rides given by the employer do not give rise to liability under the statutes. (Boggess v. Industrial Acc. Com. (1917), 176 Cal. 534 [L.R.A. 1918F 883, 169 P. 75]; Gruber v. Mercy (1929), 7 N.J.Misc. 241 [145 A. 106].) In other words, the transportation has to be furnished as a part of the contract of employment, to come within the rule. (In re Donovan (1914), 217 Mass. 76 [Ann.Cas. 1915C 778, 104 N.E. 431].)’ ” It is evident from, the above that as late as 1941 California has given approval to the rule that “courtesy rides” do not come within the exception of the “going and coming” rule.
The law is that the conduct of the parties in carrying out the contract of employment may be considered with the contract in determining their respective rights and duties. (Burlingham v. Gray, 22 Cal.2d 87 [137 P.2d 9].)
Assuming, but not admitting, that the Industrial Accident Commission could ignore the written conditions attached to a contract of courtesy riding and determine the rights of the parties in that regard from all the circumstances surrounding the employment, the evidence shows that the injured employee herein, who was the party in interest, at no time considered the “pass” a condition of employment. Under such circumstances I am unable to agree that in the determination of this legal question the opinion testimony of a third party is competent, standing alone, to prove the meeting of the minds on the “condition of employment” between the injured party and petitioner.
The majority opinion cites certain cases wherein the New York and California rule has not been followed. One of the cases relied upon is Badermacher v. St. Paul City Ry. Co., -Minn.-[8 N.W.2d 466], where a specified number of free tickets, the equivalent in value of $7.50 a month, were issued to employees. The court comments upon this additional amount received in consideration of employment and states (p. 470 [8 N.W.2d]): “A gratuitous passenger, in the absence of any condition or stipulation as to assumption of risk of personal injury, is entitled to the same degree of care as any other passenger.” In the present case on the contrary there was a specific waiver, and passes in identical terms were issued not only to employees but to “others.” In brief, the problem we are interested in is a “courtesy pass” and not a pass given in part payment of salary.
*258In addition to the Tallon case referred to in the majority opinion, see American Mut. Liability Ins. Co. v. Curry, 187 Ga. 342 [200 S.E. 150]; Schults v. Champion Welding & Mfg. Co., 230 N.Y. 309 [130 N.E. 304]; Kowalek v. New York Consolidated R. Co., 229 N.Y. 489 [128 N.E. 888]; 10 A.L.R. 172; 62 A.L.R. 1445; Dellepiani v. Industrial Acc. Com., 211 Cal. 430 [295 P. 826]; Smith v. Industrial Acc. Com., supra; Trussless Roof Co. v. Industrial Acc. Com., supra; Boggess v. Industrial Acc. Com., supra.)
If the “courtesy pass” is construed in this case as “a condition of employment” then it would be just as reasonable to hold that its use on a personal mission could be regarded by the employee as a “condition” or incident of employment upon which the employee advanced from the civil service list to the status of employee, and accordingly that he would be entitled to compensation for an injury received on the way to church, a picnic or high jinks.
In my opinion the award should be annulled.
Petitioner’s application for a hearing by the Supreme Court was denied December 27, 1943.