dissenting: The function of the Court is the interpretation and application of law — but not merely written law. Beyond this, there is a great body of principles established by public policy which we regard as binding. They are reflected in the decisions of the courts— of this Court as well as others — and, outside of constitutional amendment and statutory enactment, they offer the only known means of keeping law adjusted to enlightened progress. Without violating these principles the courts cannot establish arbitrary requirements between employment and labor contrary to recognized custom and usage which enter into the terms of the contract and so invite a return to conditions from which society has painfully lifted itself through the conflict and turmoil of the years.
In my opinion, the decision of the Industrial Commission denying compensation for the death of the watchman, Stallcup, is a serious departure from those principles, in adopting an arbitrary conception of the duties of the watchman, contrary to recognized standards, and in declining to recognize the rules of liberal construction which it was their duty to observe in the administration of the act. The result is to place upon common labor in this field, to the advantage of the employer and the insurance carrier, a burden which the law did not intend it to carry. Moreover, the main fact found by the Commission that the deceased was asleep at the time of the accident, or was arising from sleep, is not *306supported by any evidence whatsoever, and I think a fair interpretation of the order of the Commission admits it. I am not willing it should pass this Court with a mere formulary approval. The facts demand scrutiny.
All authorities agree that the provisions of workmen’s compensation acts must be liberally and broadly construed in favor of the employee. “It is, of course, the settled rule everywhere.” Ex parte Coleman, 211 Ala., 248, 100 S. E., 114, 115. Williams v. Thompson, 200 N. C., 463, 157 S. E., 430; West v. Fertilizer Co., 201 N. C., 556, 160 S. E., 765; Johnson v. Hosiery Co., 199 N. C., 38, 153 S. E., 591; Reeves v. Parker-Graham-Sexton, Inc., 199 N. C., 236, 154 S. E., 66; Cole v. Minick, 123 Neb., 871, 244 N. W., 785, 787. This is not only because they are remedial statutes, but because of their history great concessions of common law rights have been made, and because they are for the benefit of “the laboring class.” Southern Surety Co. of New York v. Scheels, 49 S. W. (2d), 937; Henley v. Oklahoma Union Railway Co., 81 Okla., 224, 197 P., 488, 490, 18 A. L. R., 127; Stacy v. State Ind. Accid. Com., 26 P. (2d), 1092, 1094; Cleveland Railway Co. v. Kingdom, 23 Ohio App., 95, 154 N. E., 168. “The act in question arbitrarily restricts the rights of employees affected by it.” Ætna Life Ins. Co. v. Rodrigues (Tex. Civ. App.), 255 S. W., 446, 447. “With the utmost liberality,” says Ind. Com. v. Sodec, 55 Ohio App., 177, 177 N. E., 292, 293. Also in Eastern Texas Elec. Co. v. Woods (Tex. Civ. App.), 230 S. W., 498, 503; McQueenie v. Sutphen & Hyer, 153 N. Y. S., 554. “Every intendment of the statute” is the wording in Great American Indemnity Co. v. Essary (Tex. Civ. App.), 57 S. W. (2d), 891, 892. “It is the universal holding of the Court.” Smith v. Marshal Ice Co., 204 Iowa, 1348, 217 N. W., 264, 265. This is not merely because it is a remedial law, but because of the complete wash-out of common law rights and remedies in favor of the employees which it brings about. In re Bowers, 65 Ind. App., 828, 116 N. E., 842, 843. It has been frequently held that all doubts as to the right to compensation should be resolved in favor of employees or their dependents. National Cast Iron Pipe Co. v. Higgenbottom, 216 Ala., 129, 112 S., 734. “All presumptions indulged will be in favor of those for whose protection the statutory compensation was fixed and who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded.” Wick v. Gunn, 66 Okla., 316, 169 P., 1087, 4 A. L. R., 107. Liberality of interpretation thus required extends to the nature and cause of the accident and injury, and whether or not it is within the orbit of employment. Specifically, the provision “arising out of and in the course of employment” must be liberally construed. Stacy Bros. Gas Construction Co. v. Massey, 92 Ind. App., 348, 175 N. E., 664. “The words ‘by accident arising out of and in the course of employment,’ as used in workmen’s compensation *307acts, should be given a liberal construction in order that the humane purpose of their enactment may be realized.” Empire Health & Accid. Insurance Co. v. Purcell, 76 Ind. App., 551, 132 N. E., 664, 665; Holland St. Louis Sugar Co. v. Shraluka, 64 Ind. App., 545, 116 N. E., 330. It might be well to remember this word “humane.”
Contrary to accepted precedent and the theory upon which all workmen’s compensation laws are based, the Commission achieved at the very first a point of view of rigidity and strictness. “His duties” (night watchman at defendant’s plant) “are very similar to those of a sentry or night guard on a military reservation.” This is not the use of an unfortunate expression. It is the expression of an unfortunate attitude. The militaristic conception is faithfully followed at every vital turn in the case.
I do not wish anything that I may say in the treatment of this case to be construed as reflecting on our Industrial Commission, which I regard as outstanding in this country, not only as to personnel but as to the fine contribution it has made to this difficult branch of administra-tional law by constructive decision. This, as I know, was not achieved without faithful study and a well informed and conscientious application of the Workmen’s Compensation Act to the cases decided by that body. In that respect, the uniform correctness of decision, although in the history of the administration here very intricate matters had to be handled, has left the courts little to do. It is not 'amiss to say that the broad research made by members of this body into subjects connected with the administration of this and similar laws is nationally recognized. I only wish to point out that in my judgment a departure has been made in this instance from that liberality of construction which is enjoined both upon them and us, and a strictness applied in this case which is unusual in the decisions of that body, and which I think is in conflict with the rules, which should guide us in the interpretation of the law.
The evidentiary facts are undisputed and clear in their import and, therefore, the finding that the deceased employee did not come by his injury and death through an accident arising out of and in the course of his employment is a question of law. Baron v. National Metal Spinning & Stamping Co., 182 N. Y., 284, 169 Supp., 337; Ind. Com. v. Big Six Coal Co., 72 Colo., 377, 211 P., 361; Noskey v. Farmers Union Coop. Assn., 109 Neb., 489, 191 N. W., 486. Conclusions of fact are inferences which must not be based upon speculation but upon relevancy of the probative fact. Whether there is such relevancy the Court will determine.
There is no evidence to support the findings or conclusions of fact upon which this conclusion of law was predicated. To be more specific, there is no evidence in the record upon which the Industrial Commission could base the conclusion that the deceased watchman had made any *308deviation from bis employment and was outside of its orbit when bis injury was sustained.
Tbe undisputed facts are as follows: Stallcup was a watchman at tbe plant of tbe defendant company, tbe duties of wbicb position continued from eleven o’clock in tbe evening until seven o’clock in tbe morning. He bad other intermittent duties to perform in connection with this continuous employment as a watchman. It was bis duty to start fires in tbe boilers to get up steam in time to start tbe engines in tbe morning, and to beep tbe fires going in tbe drying plant. As watchman be was required to make periodic rounds and punch clocks in various positions on tbe premises to serve as evidence of bis inspection. With tbe exception of these periodic rounds bis activities were not scheduled as to time. Between bis rounds there were periods of comparative inactivity, during which' be was not required to be at one place more than another — a time during wbicb bis duties might be summed up as those of waiting and watching. What position be should take at such times — whether standing, sitting, or recumbent — was largely of bis own choosing.
On tbe morning of bis death be secured tbe services of bis son to fire tbe boiler for him and, between bis rounds of inspection, laid a plank upon a box on a walkway near tbe boiler room, placed bis raincoat upon it, and lay down to rest. A short time thereafter bis son came to tbe door, called him and reminded him that it was approaching time for tbe five o’clock round. Tbe father responded by giving tbe young man instructions as to tbe firing of tbe furnace. Shortly thereafter this witness beard a fall, and going out found bis father bad fallen upon tbe concrete about eight feet below tbe walkway and seemed badly hurt, calling for a doctor. Young Stallcup went after bis mother, called tbe doctor, and when tbe doctor arrived it was found that tbe elder Stallcup was dead. Tbe autopsy showed that tbe left lung bad been injured and that be bad bled internally.
Upon this evidence tbe Full Commission found that tbe deceased employee was asleep, or that be was in a dazed condition following sleep, when tbe accident occurred; that for bis own ease and comfort be bad taken up a position wbicb made it impossible for him to perform tbe duties of a watchman; that be bad delegated tbe duties of bis position to bis son, and bad thus abandoned them; that be bad increased tbe hazards of bis employment and, therefore, was without its pale.
I take these findings somewhat in their order.
There is no evidence in tbe record that Stallcup was asleep at any time, nor is there any evidence that be was in a dazed condition following sleep at tbe time tbe accident occurred.
How far the Industrial Commission may be indulged in refusing to believe credible testimony is still to be worked out, but its arbitrary dis*309regard of positive testimony and tbe substitution tberefor of mere speculation is within the power of review and correction by this Court.
There is no real evidence anywhere in this case that Stallcup was asleep on duty or asleep at all, although the able counsel for the defense pressed this phase of the case with commendable vigor and zeal, both in the development of the case before the Commission and in his argument here. The testimony of young Stallcup on this point, while confused at points, does not, in probative value, amount to evidence but, indeed, is to the contrary. The Commission, rightfully I think, took that view of it.
The Industrial Commission itself tool this view of the matter Toy finding (R., p. 36) that “there is no testimony that the deceased was asleep.” Yet, out of the thinnest of thin air, the Commission permitted hypothetical questions to he propounded to witnesses, hasecl on the assumption that the deceased was asleep, and to testify as to conditions of mental confusion following a sudden awakening. (The diminution of the blood supply in the brain, caused by suddenly changing from a recumbent position to an erect position, as a matter of common knowledge frequently causes dizziness, without preceding sleep. The evidence refutes the finding that there was a dazed condition, but if it had been the case it was as easily attributed to this innocent cause as it was to sleep.
What else is there in the evidence suggestive of sleep after this testimony was properly disregarded by the Industrial Commission? Nothing-more than that the deceased had been for some time in a reclining position, and that he fell. These facts have no probative relevancy to sleep, and any finding based upon them is pure speculation. Farfour v. Fahad, 214 N. C., 281, 199 S. E., 521.
The deceased was upon the premises. There was nothing in the nature of his employment that required him to be at any particular place at any particular time except as he made his rounds. In order, therefore, to remove him constructively from the orbit of his employment he must have been asleep, for in no other way could he negatived the attention and alertness of faculties which was, at the moment, all that could be required of him.
Eut concede for purposes of this analysis that the deceased had been asleep, and that this caused a deviation from his employment. As soon as he awoke he was upon the premises, at the very point physically, and morally, where the deviation had occurred, and he was eo instanti within the ambit of his employment, and in the very act of performing one of his more active duties, that of making the five o’clock round. Schneider, Vol. 1, 2nd Ed., p. 1182; Conyer v. Canadian Northern Railroad Co., 12 N. C. C. A., 898.
There is no evidence in the record that any previous condition of sleep or inattention at this time clouded his faculties. There is this *310abstract statement by an expert witness that confusion might follow sleep. There is a speculation on the part of the Industrial Commission that this confusion then attended the watchman. They were not content with the positive testimony of young Stallcup that such was not the case. They were not content with the evidence that the watchman had given specific and intelligent directions with regard to starting the fire, denoting his full consciousness and awareness. The “circumstances,” they conclude, show that he was asleep. There are no circumstances pointed out, and there are none other than I have stated, and if they have any relation at all to that condition it is, at most, speculation. The utmost sinning that can be imputed to the deceased is that he rested between rounds.
The Commission has undertaken to take judicial notice of the duties of a watchman, and the Court, inadvertently I think, has approved that principle, although it has been rejected by other tribunals. But, if the Industrial Commission may do so, so may this Court. But whether we go by the record or by a common knowledge of the employment as a watchman, the Industrial Commission has taken a view of the incidents of this employment entirely inconsistent with that held by textwriters and courts whose conclusions we have been accustomed to respect. They measure the demands of the employer no less than they do the liberties of the employee. They are far from regarding the employee as a slave whose humanities may be refused recognition, or a robot who has none. These uniformly recognize the human limitations which are involved in service, and from them we may epitomize the respect which must be paid by employer and employee to their mutual rights. “No break in the employment is caused by the mere fact that the workman is administering to his personal comfort or necessities as by warming himself or seeking shelter, or by leaving his work to relieve nature, or to procure drinks, refreshments, food, or fresh air, or to rest in the shade.” Honnold, Vol. 1, p. 382; Koch v. Oakland Brewing and Malting Co., 1 Cal. I. A. C. Dec., 373; Jackson v. General Steam Fishing Co., Ltd., 2 B. W. C. C., 56, H. L. Ct. of Sess.; Clem v. Chalmers Motor Car Co., Op. Mich. Indus. Accid. Bd., Bul. No. 3, p. 40.
A principle which the Commission seems wholly to have ignored is that in employment of this kind, where the more strenuous duties are intermittent, there is a period of comparative relaxation, if not leisure, in which attention to the personal comfort of the employee does not take him out of the orbit of his employment. Thus, in Iron Co. v. Ind. Comm., 160 Wis., 633, 152 N. W., 416, an employee who insuch an interval of inactivity went into a car to warm himself by heat from the briquettes which it was his duty to unload and in consequence thereof was killed through a collision with another car upon the track, the injury was compensable and the Court said: “The man’s duties involved periods *311of leisure during wbieb apparently be was expected to bill time as best be might, witb no specific direction as to wbat be should do or where be should wait; the night was cold, and he put off dumping the'car until he could warm himself from its heated contents; tq say that in so doing he had left the master’s employment, was pursuing his own private purposes, and doing something foreign to the work he was employed to do is illogical to a degree.”
A night watchman had gone to a shanty to cook food and it fell and injured him. He had no business in the shanty or to make fire there at night. The injury was held to have been sustained in the course of his employment. Morris v. Lambeth Borough Council, 8 W. C. C., 1, C. A.
To further support the view that a night watchman injured while resting between his rounds is entitled to workmen’s compensation, we may note the following: Injury in fight in wash-room while preparing to eat lunch (Vordy v. Joseph Horne Co., 96 Pa. Super. Ct., 550); injury to eye during scuffle of other employees during lunch hour or during working period (Vignaul v. Howze, 150 So., 88, La. App., 1933); injury due to falling out of chair while reading at lunch time (Sears, Roebuck & Co. v. Finney, 169 Tenn., 547, 89 S. W. 2nd, 749; prostration from heat while sitting in sun during rest period (Holmes’ Case, 267 Mass., 307, 166 N. E., 827); injury due to combing hair preparing to leave work (Terlecki v. Strauss, 85 N. J. L., 454, 89 Atl., 1023); death due to blasting of stumps by logging foreman during lunch hour (Lumber Co. v. Industrial Commission, 168 Wis., 230, 169 N. W., 561); going to answer telephone (personal call), Holland St. Louis Sugar Co. v. Shraluka, supra; returning to work upstairs after setting bottle of tea in basement (9 note, p. 933, Etherton v. Johnstown Knitting Mills Co., 184 App. Div., 820, 172 N. Y. S., 724, 17 N. C. C. A., 961).
I have already expressed myself as to the effect the position which the deceased had taken up might have on the question of deviation from employment. As I have before stated, there is nothing in the record, and I know nothing regarding the duties of his employment, that would require him to be in any particular place during the time of his less active duties. A reasonable alertness to those duties is not inconsistent with his conduct in this respect, as disclosed by the record.
The deceased did not abandon his duties or deviate from his employment by delegating only a portion of his intermittent duties, that is, of firing the boiler, to his son. Employers’ Liability Assurance Corp. Ltd. of London, England, v. Ind. Acc. Com. of California, 179 Cal., 432, 177 P., 171. This is especially true, since his duties as a watchman were continuous, to be performed notwithstanding any other duty, and this duty he did not delegate.
The main opinion says the accident “happened at a time when it was *312bis duty to be engaged actively in tbe boiler room cleaning out grates and increasing tbe bead of steam in tbe boilers.” Tbe record evidence does not support this. There is no evidence whatever in tbe record that it was bis duty to attend to tbe boilers at that particular time. On tbe contrary, firing tbe boiler was superadded to bis duty as watchman, did not produce a discontinuity in bis duties as watchman, and it was only necessary to fire tbe boiler in time to have steam up for tbe beginning of operations, then hours away.
Tbe Industrial Commission did not make a frank acceptation of tbe facts of tbe case above cited, Employers’ Liability Assurance Corp. Ltd., of London, England, v. Ind. Acc. Com. of California. Its pertinency cannot be evaded. Tbe employee in that case was driving and steering tbe truck as well as manipulating tbe levers controlling tbe sprinkler, lie surrendered tbe important duty of driving and steering and control of tbe truck to a stranger, while be attended to tbe less responsible duty of manipulating tbe levers; yet tbe Court held that bis injury was com-pensable, upon tbe ground that be bad not wholly abandoned tbe duties of bis employment. “He was not outside tbe course of bis employment merely because be allowed a stranger to perform a part of bis task while be was engaged in tbe remainder of it.” If we adopt that reasonable view, we are, thus, returned to a consideration, not whether be bad abandoned bis duty with respect to firing tbe boiler, but whether be bad completely deviated from bis employment as a watchman, a matter I have already discussed.
Tbe simple device of elevating one end of tbe plank, upon which tbe deceased lay, by placing it upon a box, is called by tbe Commission a “death trap,” and is held to have so added to tbe peril of tbe employment as to constitute a departure therefrom. If we were trying a case of negligence, it might be considered some evidence, but negligence, except as it may be regarded as an accident, is foreign to tbe theory of workmen’s compensation laws. They are specially designed to be rid of that complicated field of jurisprudence and to reach justice with less refinement and more certainty. 71 C. J., p. 247. Tbe underlying theory is that of insurance. Maryland Casualty Co. v. Industrial Commission, 198 Wis., 202, 223 N. W., 444, 445.
Most workmen’s compensation acts specifically provide that tbe negligence of tbe employee shall not bar bis recovery. Tbe question as to whether a known act adds such a peril to employment as to bar compensation is one of law upon tbe facts. Tbe Court cannot consistently bold that this simple act of tbe deceased is of such a character as to defeat compensation without going deep into tbe field of negligence and deciding tbe case consciously or unconsciously, upon that principle. How remote tbe facts in tbe case at bar are from sustaining that principle may be best understood by illustrations from compensation cases :
*313It is said in Honnold on Workmen’s Compensation, page 389: “A peril which arises from the negligent or reckless manner in which he does the work which he is employed to do may well, and in most cases rightly, be held to be a risk incidental to the employment.” Acts not in willful disregard of notice or known danger, but merely negligent, are not sufficient to defeat compensation.
In Pepper v. Sayer, 7 B. W. C. C., 616, C. A., where a farm bailiff, who needed something from a cowshed which was locked and did not want to go home for the key, imprudently got up on the window sill in an effort to reach what he wanted, slipped, and was killed in the fall, it was held to be an accident arising out of and in the course of his employment and compensable.
In Durham v. Brown Bros. & Co., Ltd., 1 F., 278, Ct. of Sess., where a workman seeking to find out the cause of a leak from a tank, climbed up to it by an obviously dangerous way, instead of by a perfectly safe way which was provided, and in consequence thereof was killed by some machinery which was close, the injury and death were said to be com-pensable.
In Bullworthy v. Glanfield, 7 B. W. C. C., 191, C. A., where a window •cleaner tried to get from a window which he had just finished to the next by crawling along a narrow ledge, instead of going back into the room, and was injured, the injury was held to be caused by an accident arising out of and in the course of employment and was compensable.
The causes leading to the adoption of workmen’s compensation acts are well known and well understood. 71 C. J., 242, et seq. In this State, at least, the chief of such causes was the fact that exposure to personal injury suits had become ruinous to industry. Such statutes, commendable as they are when properly administered, are in derogation of common law rights, and involve commitments, compromises, and concessions in which recoveries are drastically limited. Through them certainty and security are intended to be provided both to the employer and to the •employee; most of all it is intended that the ends of justice may be reached by simple administrational processes short of the uncertainty and technicalities of negligence law. In return for these concessions, broader principles of liability were applied to employers, so that industry might take care of its own wreckage. When, because of the renaissance of these abandoned technicalities in the practice of administra-tional boards, it becomes apparent that these objectives can no longer be reached, the end of the experiment is in sight.
The judgment in this ease ought to have been reversed.
•ClaeicsoN and Schehcic, JJ., concur in dissent.