dissenting.
I am compelled to dissent from the opinion in this case, and will briefly state my reasons therefor.
*70By our statute “personal injuries arising out of and in the course of employment” is declared “not to cover workmen except while engaged in, on or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service of such workmen.” Comp. St. 1922, sec. 3075. It seems to me that a proper construction of this provision precludes an allowance of compensation to plaintiff. It is evident, to my mind, that the words, “in some work for the employer,” or others of like meaning, are understood after the word “engaged.” It seems self-evident that the mere fact that he was in, on or about the employer’s premises, but engaged in some act entirely disconnected with his service, would not entitle him to compensation for injuries received as the result of, or incident to, such act, as, for instance, cleaning his nails, a personal altercation with a visitor, or many other occurrences which will readily come to mind. The act which produced the injury must be one required to be done in performance of work for the master, and as a part of that service, not one which it was his duty or pleasure to perform regardless of his employment. The act being performed must be one required by the nature of the employment or so incident to it that it may reasonably be considered a part of the service; and there must be a causal connection between the services due the employer and the injury. There is no more causal connection between the work of dragging the roads and feeding the horses than there is between dragging the road and feeding the employee. It would seem that no one would claim as compensable an injury received by the employee while eating his lunch, occasioned by a fall of plaster from the ceiling, and yet it was just as essential to the performance of the employer’s work that the employee be fed as that the horses be fed. To put it plainly, the horses were fed, not because the employee was engaged in dragging the roads for the county, but absolutely independent of that fact. They would have been required to be fed just the same if the plaintiff had been intending to *71hitch them to a plow on his farm or for any other purpose for which their services were needed, or, in fact, if they were to remain in their stalls all day. The fact that the team and driver were employed for the purpose of dragging the roads does not convert the service of the driver in feeding and taking care of his team into a service for the master, for, as above suggested, such service was independent of the employment, and was required merely that the employee might fulfill his contract. He might as well have used other horses, oxen, or an auto-truck. He had no hours of service, but was paid by the mile. If it had rained before or after the injury, he could not have performed the work of dragging the roads. In short, it seems an unwarranted stretch of language to say that in feeding his own horses, which he would' have been required to do in any event, he was engaged in the service of the master.
The strongest argument advanced for allowance of compensation is that, if the plaintiff had been several miles from home at the noon hour and had simply driven his team to the side of the road to feed them and partake of his own lunch, and had been kicked by one of the horses and received an .injury, a compensable case would be presented. I recognize the force of the illustration; but, assuming the correctness of the conclusion stated, I apprehend that the situations may be distinguished as the supposed situation may come within that portion of the clause of the statute, “where their service requires their presence as a part of such service.” In such case, the act of feeding the horses was so closely connected with the performance of the work that it might be considered as incident to and a part of it. Analogy is not always a dependable method of reasoning, and I think it is faulty here, for the reasons stated and because of the different circumstances of the situation.
I think the Michigan, Vermont and New York cases relied upon in the opinion are not controlling, for the reason that Michigan and New York, and, so far as I am able to discover, Vermont, have no statute limiting and defining the phrase “arising out of and in the course of employ*72ment.” Moreover, many of those cases are distinguishable. In Punches v. American Box Board Co., 216 Mich. 342, it was part’ of the servant’s business to drive and care for the employer’s horses. In Derleth v. Roach & Seeber Co., 227 Mich. 258, stress is laid on the fact that the death occurred within the hours of service of the employee. In Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, the employee was actually performing a service for the master at the time of his injury. In Matter of Kingsley v. Donovan, 155 N. Y. Supp. 801, the injury occurred during the hours of service, and while cleaning the motorcycle belonging to the employee, but used by him in the performance of his duties.
The case of Brown v. Bristol Last Block Co., 94 Vt. 123, sustains the plaintiff's contention, but Kneeland v. Parker, 100 Vt. 92, in which compensation was refused, is not distinguishable in principle from the case at bar, though the facts are somewhat dissimilar.
Finally, it is suggested by the opinion that, in order to reverse this case, it will be necessary to overrule the case of Tragas v. Cudahy Packing Co., 110 Neb. 329. I think that case is clearly distinguishable by the fact that Tragas was engaged in work solely attributable to the fact of his employment. The sharpening of the chisel would not have been undertaken by him but for the fact that it was to be used exclusively in the performance of the work for which he was employed. Furthermore, the chisel belonged to the employer and was an instrumentality specially supplied for the use of the servant. The feeding of the horses in the present case was an independent transaction, and was required to foe done regardless of the service due his employer and not because of such employment.
For the above reasons, I respectfully dissent from the opinion of the court.