(concurring).
I concur in the foregoing opinion by Judge BORAH.
This is not the ordinary case of an employee injured while away from his employer’s premises to secure a meal on the employee’s own time, during which ¡his employment is temporarily suspended. It is clear that in such circumstances an employee is not covered by the Texas Workmen’s Compensation Act, and the majority opinion herein should not be interpreted as a departure from that rule. What we have here is a contractual exception to the general rule.
It was expressly agreed between this employer and employee, as part of the contract of employment, that the employee would be continuously on duty from 12 noon on Saturday to 7:30 a. m. on Monday, — 43% hours; that he could go to his nearby home for’ a hot breakfast on Sunday morning; and that while he was getting his breakfast he “would be on company time, and that he would be on the payroll.” It was beneficial to the employer to have him do this, as it enabled him to better perform his duties as watchman during the long interval involved. He was killed while proceeding to get his breakfast in the manner contemplated and sanctioned by his contract of employment, not on his own time, but on the company’s time.
This situation is analogous to that in which an employee is injured while going to or returning from work, when his contract of employment requires the employer to furnish him transportation to and from his home, in which circumstances the employee is covered by the Texas Act, although he is not required to use the transportation so furnished but merely has the privilege,— just as this employee was not required to go home for his breakfast, but was permitted to do so by his contract of employment. Great American Indemnity Co. v. Ortiz, 5 Cir., 193 F.2d 43.
In Southern Surety Co. v. Shook, Tex.Civ.App., 44 S.W.2d 425, 427, an employee was engaged to attend and operate an oil well pump located in a remote rural spot. While at a point about one-half mile from the pump, for the purpose of hunting wolves, he was murdered by one of his hunting companions. He was held to be covered by the Act, and an award sustained, on the ground that while hunting he was still in the course of his employment because he could hear the pump from where he was hunting. The Texas Court of Civil Appeals, which decided the case, said: “When a man is employed to work at any job, the fact that he is a human, with ordinary human habits and requirements, is necessarily taken into consideration.”
In Texas Employers Ins. Ass’n v. Monroe, Tex.Civ.App., 216 S.W.2d 659, 662, the employee was a tool-pusher, who was on duty 24 hours a day, subject to call at all times, and was authorized to use his own judgment in his comings and goings around the oil well where he was employed. His duties, which included keeping the well-operation in supplies, required him to make frequent trips between the well and Houston. He was found dead in his car, which had plunged into the Houston Ship Channel, between the oil well and Houston, and in the area through which he was frequently required to travel in the course of his employment. It does not appear that he was carrying tools at the time. Though it appeared that he was intoxicated a short while previous to the accident, he was held covered and an award sustained.
The Texas Court of Civil Appeals, which decided the case, said: “It thus appears that under this contract (of employment) the movements the deceased made, and which *885resulted in his fatal accident, were cus-, tomary, were known to his employer, and had its approval. In these circumstances, under our authorities, he was within the course of his employment at all times up to his fatal accident, hence he had not deviated therefrom.”
If an employee is covered in the circumstances above related because engaged in activities incident to his employment, he is certainly covered here, where he was proceeding in a manner and for a purpose expressly sanctioned by his contract of employment, doing so with the knowledge and approval of his employer, and on the em-’ ployer’s time, — not his own.