dissenting.
For the purpose of this dissent, the statement of the case as set forth in the majority opinion is fully accepted, but I cannot agree with the conclusion reached. It appears to me that under the facts the plaintiff is entitled to be compensated under the workmen’s compensation law.
It is the established policy of this court to give a liberal construction to the workmen’s compensation law in order that its beneficent purposes may not be thwarted by technical refinement of interpretation. Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N. W. 797; Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N. W. 254; Moise v. Fruit Dispatch Co., 135 Neb. 684, 283 N. W. 495; Kral v. Lincoln Steel Works, 136 Neb, 31, 284 N. W. 761.
This is not a rule of evidence. It does not contain within its context or implications any criteria for the acceptance or rejection of evidence, or the weight to be given to testimony on controverted questions of fact. It applies rather to the proper legal resultant flowing from facts demonstrated by evidence, or presumption acceptable in the place of evidence. It -does not relieve against any rule bearing upon proof of an issue of fact. It is a statement of legal principle requiring that the court, on accepted ultimate facts, shall not adopt a technical viewpoint or a technical refinement in application of the workmen’s compensation law, the effect of which would defeat a recovery when a liberal but reasonable one would allow recovery.
*230In the light of the facts and the foregoing rule, we are required to interpret and apply the exclusionary provisions of section 48-152, Comp. St. Supp. 1941.
That the plaintiff, within the meaning of these provisions, was not “engaged in, on or about the premises” where his duties as an employee were performed cannot well be questioned, but whether or not he was where his service required his presence and that the accident occurred during his hours of service is a question not so easy to determine.
If all service and all prospective service for the day contemplated by the character of employment in which he was engaged were ended, and he was off the premises and on his way home, then clearly under the decisions of this court a recovery cannot be sustained. Pappas v. Yant Construction Co., 121 Neb. 766, 238 N. W. 531; Siedlik v. Swift & Co., 122 Neb. 99, 239 N. W. 466; De Porte v. State Furniture Co., 129 Neb. 282, 261 N. W. 419; Sheets v. Glenwood Telephone Co., 135 Neb. 56, 280 N. W. 238; Weideman v. Milburn & Scott Co., 138 Neb. 205, 292 N. W. 594; Wilbur v. Adams Lumber Co., 140 Neb. 48, 299 N. W. 268.
On the other hand, if plaintiff was at the time of the accident, though off the premises of his employer, where his services reasonably required his presence during his hours of service, he is entitled to recover. Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N. W. 191; City of Fremont v. Lea, 115 Neb. 565, 213 N. W. 820; Speas v. Boone County, 119 Neb. 58, 227 N. W. 87; Ridenour v. Lewis, 121 Neb. 823, 238 N. W. 745; Good v. City of Omaha, 125 Neb. 307, 250 N. W. 61; Struve v. City of Fremont, 125 Neb. 463, 250 N. W. 663; Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N. W. 89; Miller v. Reisch Co., 132 Neb. 338, 271 N. W. 853.
The theory on which plaintiff rests his contention that the accident occurred during his hours of service, and that he was at a place required of him by his service, is that when his employer was away he was in charge of the business and he was subject at any time to respond to calls from his home to the place of business of his employer, and that such *231calls required him to go to and fro between the two points.
That he was subject to call at any time finds no substantial denial in the record. In fact, on the Sunday in question the requirements of his position necessitated three appearances at the garage. He infers that he would still have been subject to call had he not sustained the accident and injuries in question, and in the bill of exceptions no evidence appears to refute this inference.
As against this the defendants urge that the testimony of plaintiff, wherein he stated that on his return home after putting away the car and closing the garage he intended to stay at home, places him in the same class as those who have finished the duties of the day and are on their way home.
On the basis of the unrefuted inference that plaintiff was subject to call at any time and in that sense was on duty, which I think, on the record, was a proper one, and in the light of the rule requiring liberal construction of the workmen’s compensation law in order that its beneficent purposes may not be thwarted, I am of the opinion that the award and judgment of the district court should be sustained.
Eberly, J., concurs in the dissent.