dissenting: The Industrial Commission found as a fact that the deceased suffered an injury by accident arising out of and in the course of his employment as jailer, resulting in his death. If there is any evidence to support this finding the judgment below should be affirmed. An examination of the testimony in the record discloses that the witness H. J. Stockard testified that the deceased had gone to arrest *113Campbell, but it does not appear that Stoekard was present on tbe occasion or bad any personal knowledge of wbat took place. Tbe only witness testifying of personal knowledge was Mrs. Lawrence Gowens, tbe wife of deceased. Sbe said: “On tbe date my husband was killed I was at borne at tbe jail. ... I beard a sbot and I went to tbe front porcb. There was a man working on tbe telephone post and be called me and asked if tbe sheriff was there — said somebody bad a gun down street and bad sbot somebody. I ran in tbe bouse and called him (deceased) and be went right on down. Tbe jail bouse is on tbe corner of Maple Avenue and Elm Street. The Campbell bouse is two doors below tbe jail — tbe second door below tbe jail, on Elm Street, immediately back of tbe jail.” That is all the testimony in the record relating to tbe circumstance of bis death. It was admitted that be was killed by a gunshot fired by Campbell.
While tbe original bearing commissioner made findings of fact as to tbe manner in which tbe deceased came to bis death (quoted in tbe majority opinion), tbe case on appeal agreed to by counsel, constituting tbe record before us, contains no testimony to support such finding. Tbe only witnesses on this record whose testimony referred in any way to tbe manner of bis death were H. J. Stoekard and Mrs. Lawrence Gowens, herein above quoted.
Considering this testimony, it seems unquestionable that tbe deceased was on duty as jailer at tbe time of bis injury. He bad charge of tbe jail premises and of tbe prisoners. From Mrs. Gowens’ testimony it appears that be received warning that there was a man with a gun in tbe street immediately back of tbe jail — a man who bad just sbot someone — and that tbe jailer went right out. It was bis duty as jailer to investigate any menace or disturbance in tbe immediate vicinity of tbe premises and prisoners which be bad in charge. Whether bis purpose was to make an arrest or to investigate a happening which might affect bis charge, was a matter of inference to be drawn from tbe facts in evidence. Tbe conclusion that be went out of tbe jail to make an arrest as deputy sheriff does not necessarily follow. Nor does it necessarily follow because be was outside tbe jail at tbe time of bis injury that be was not attempting to perform some duty in connection with bis employment as jailer.
If there be any reasonable inference from tbe testimony to support, tbe finding of tbe Industrial Commission that tbe deceased suffered an injury by accident arising out of and in tbe course of bis employment, as jailer, tbe ruling of tbe court below was correct. I think tbe evi- . dence as reported permits such an inference, and that tbe judgment sustaining tbe award of compensation to tbe widow should be affirmed.
ScheNck, J., concurs in this opinion.