(dissenting).
Even if it be conceded that the majority opinion is correct in so far as it holds that the evidence supports no reasonable inference other than that Miss Pitts was an employee of the hospital at the time she was injured, I am of the opinion that a jury question was presented as to whether the injury arose out of and in the course of her employment.
Death or injuries resulting from fire have been held to arise out of and in the course of employment when the employee is injured while in the room which he is required to occupy as a term of his employment, even though the employee was asleep or not actively engaged in his work at the time of the fire. Finnegan v. Biehn, 276 N.Y. 50, 11 N.E.2d 348; Giliotti v. Hoffman Catering Co., 246 N.Y. 279, 158 N.E. 621, 56 A.L.R. 500. In the case last cited the employee received his injuries which later resulted in his death while in his room on his day off, when he was at liberty to leave his employer’s premises.
On the other hand, it has been held that an injury to an employee received as a result of the burning of a barn in which the employer had gratuitously allowed the employee to sleep did not arise in the course of employment within the protection of the workmen’s compensation law where the employee was not required to reside on the employer’s premises, but might come and go at his pleasure. Guiliano v. Daniel O’Connell’s Sons, 105 Conn. 695, 136 A. 677, 56 A.L.R. 504.
It appears, therefore, that where the ultimate question of compensability under the workmen’s compensation law is presented, a supporting issue as to the requirement of the employee’s residence is determinative.
The evidence as it came from the witnesses who testified in this case is without conflict that Miss Pitts was required to live in the nurses’ home. However, the plaintiff introduced in evidence the answers of the defendant hospital to interrogatories propounded to it by the plaintiff. Some of the answers to the interrogatories are to the effect that Miss Pitts was furnished a room for her comfort and convenience in the nurses’ home, where the student nurses were permitted to live during their training period.
In view of the position taken by the defendant in its answers to the interrogatories to the effect that Miss Pitts was not required to live in the nurses’ home, but the room which she occupied was merely furnished her for her comfort and convenience, and that her occupancy was merely permissive, I am of the opinion that a jury question was presented as to whether *673or not the injury which resulted in her death arose out of and in the course of her employment.
SIMPSON and GOODWYN, JJ., concur in the foregoing views.