(concurring): I concur in the decision of the majority. It is my purpose merely to emphasize a few particular considerations which compel my concurrence.
In the first place, in order to avoid any possible confusion, I think it may be well to state that the case of McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695, decided in October, 1927, and relied on by appellee, is not an authority for our interpretation of the statute presently under consideration. The statute was not mentioned by appellant in that case. It was not considered by this court. Appellant there had arrived at the scene of his employment and the question was whether at the time of injury he was engaged in the work of his employment.
. It is my position a fair interpretation of the record requires us to say the undisputed evidence discloses the trip to close the doors was made to perform an unfinished duty of the day’s work; if the trip is not regarded as a part of the day’s work it was nevertheless specifically made to assume a duty of the employment and as such was plainly within both the letter and the spirit of the statute denying liability. To hold otherwise would defeat the reason for and the fundamental intent and purpose of the statute.
Conceding there was evidence the work on the day of the acci*325dent was, in a general way, considered finished when claimant left for his evening meal, the record clearly and without dispute discloses there was a specific duty in connection with that day’s. work which remained unfinished. The workman was injured while he was on his way to assume that duty. Lester Abbott, the local manager of the elevator and a witness for claimant, testified:
“Q. And on this 25th of July, you had completed your day’s work prior to going home to supper, hadn’t you? A. Yes.”
On cross-examination he testified:
“On the 25th of July, they had completed the day’s work prior to going cióme for supper except the closing of these doors.” (Emphasis supplied.)
That, however, is not all of the undisputed testimony. The foreman again with commendable frankness admitted the closing of the doors was an unfinished duty of that particular day’s work. That testimony was:
“Q. After you had gone home, did there any duty that should be performed come to your mind that should be performed that day, Mr. Abbott? A. Yes.” (Emphasis supplied.)
The local foreman, on direct examination, further stated he specifically told claimant to perform that- duty, that is, he told him to “go down and shut those doors.”
To my mind the conclusion is unescapable that the testimony clearly brought this case directly within the provisions of the statute which is about as plain and - comprehensive as words could make it. The statute clearly says the act “. . . shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” (G. S. 1935, 44-508 [k]) (Emphasis supplied.)
The further undisputed testimony disclosed that during the liar-vest season they had no regular working hours at the elevator and frequently worked until 9:00 or 10:00 o’clock at night.
But assuming the trip is not regarded as a part of the day’s work the case nevertheless falls directly within both the plain letter and the spirit of' the statute. The fundamental principle underlying this legislative enactment is that an injury occurring as therein described does not arise out of the hazards of the employment. That fundamental principle is the same whenever the. trip to assume some duty of the employment is made whether 'it be in the *326morning, at noon or at night. The fundamental principle is the same whether the trip to assume the duties of the employment is made at a regular or at an irregular time. There is only one circumstance under which liability is intended to attach for injury occurring 'to a workman while on his way to assume the duties of his employment or on his return therefrom. That is where the proximate cause of the injury is the employer’s negligence.
Appellee argues courts are required to give the act a liberal interpretation. The contention merits an answer. I shall state my views. I concur completely now as I have repeatedly in the past with the statement that the act should be liberally construed. But liberally construed for what purpose? Manifestly, in order to effectuate the real, the genuine purpose and intent of the lawmakers. * So, for example, in Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868, we held:
“The primary purpose and intent of the workmen’s compensation act is to provide protection to the workmen, and the act must be construed with a reasonable liberality designed to effect that purpose. While courts cannot construe the act to include injuries which clearly do not arise out of the employer’s trade or business, they will construe it so as to include certain work within the employer’s trade or business, where reasonably possible to do so, if such construction tends to uphold rather than to defeat the apparent purpose of the act.” (Syl. If 2.)
But the interpretation contended for by appellee would defeat the statute here involved by creating liability under circumstances where the legislature declared liability should not attach, namely, where the injury does not arise out of the hazards of the employment and where the proximate cause of the injury is not the employer’s negligence. Such an interpretation of the statute, in my opinion, is not liberal interpretation but nullification of the plain legislative purpose and intent.
In connection with this case it was interesting to ascertain the interpretation other states might have placed upon the same or similar statutes. A hurried investigation disclosed only a few'other states had enacted somewhat similar statutes but no cases interpreting them were found. Further investigation disclosed there apparently was no need for such statutes in most states for the reason that their courts quite generally had already held there was no liability for an accident occurring to a workman while he was on the way to assume the duties of his employment or on his return therefrom, where the proximate cause of the injury was not the employer’s negligence. A *327few of such cases are Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318,113 N. E. 256; McMain v. Connor & Sons Const. Co., 337 Mo. 40, 85 S. W. 2d 43; London G. & A. Co. v. Industrial Acc. Com., 190 Cal. 587, 213 Pac. 977; Murphy v. Board of Education, 314 Mich. 226, 22 N. W. 2d 280; Hills v. Blair, 182 Mich. 20, 148 N. W. 243; Fumiciello’s Case, 219 Mass. 488, 107 N. E. 349; De Constantin v. Pub. Serv. Commission, 75 W. Ya. 32, 83 S. E. 88, L. R. A. 1916A 329. See, also, 1 Schneider’s Workmen’s Compensation Law, 2d ed., p. 748; Bradbury’s Workmen’s Compensation, 3d ed., p. 468; Ruegg’s Employers’ Liability and Workmen’s Compensation, 8th ed., p. 377; Elliott’s Workmen’s Compensation Acts, 9th ed., p. 40; Boyd’s Workmen’s Compensation, p. 1064.
Whether we would agree with such decisions in the absence of our statute need not be determined. But I cannot bring myself to judicially declare liability in the face of a legislative enactment which, it seems to me, clearly discloses a contrary legislative intent and purpose.
Hoch, J., joins in the foregoing concurring opinion.