dissenting:
I respectfully dissent from the majority opinion and in so doing point out what I consider salient facts disclosed by the record and not referred to in the majority opinion.
Claimant was not working on an hourly basis, but on a tonnage basis:
“Q. Now you are paid on the tonnage produced at your open hearth furnace? A. Yes sir. Q. Over a twenty-four hour period? A. Yes. Q. So your pay is not based on how long you were on the job? A. No. Q. In other words when you leave, are released (relieved ?) at about half an hour before the end of the shift you are through? A. Yes, with the work.”
In my opinion the record does not disclose that “substantially all of the employees find it necessary to use them (showers),” nor “the shower is part of a reasonably necessary preparation for the employees leaving the company premises for going home.” There is no evidence of necessity — the evidence, undisputed, is:
“Q. It is entirely up to your own personal taste whether you want to take a shower or wash up in the *459wash basin? (Emphasis supplied.) A. Yes, I guess it would be, but it is very few of them that wash their hands and faces after working there for eight hours and a lot of them are not in a position to be as hot and sweaty as we are.”
Claimant’s employment terminated at TO: 20; he could have “punched out” at 10:20; his injuries occurred between 10:25 and 10:30.
“Q. Instead of leaving at eleven, what time do you actually leave? A. We are allowed forty minutes, we can punch out at twenty minutes after the hour (10:20).”
The act provides for compensation when an employee is injured while (1) performing services (2) arising out of (3) and in the course of his employment.
1. I fail to see by what reasoning it can be said that claimant at the time of his injuries was performing services (for the employer). He had prior to 10:20 been performing services; he had been doing work assigned to him by the employer, productive work, work supervised and controlled by the employer, and for which work he was compensated on a tonnage basis; at 10:20 he had ceased work; his work was taken over by another, and anything claimant did after that was of his own choosing, not subject to control by the employer and in conformity with his “own personal taste.”
At the moment claimant fell, another employee was doing the work; claimant had left at 10:20 and had this other employee been injured when claimant fell, there is no question he would be entitled to compensation and, under the majority opinion, we would have two persons compensated when there was only one job.
By way of speculation, let us assume that claimant instead of seeking compensation had brought suit against the Colorado Fuel and Iron Company and had alleged that at the time of the injury he was an invitee and his injuries were caused by the negligence of the C. F. & I., and the C. F. & I. had alleged as a defense that the in*460juries suffered arose out of and during the course of his employment and therefor were compensable but could not be made the basis of a tort action. Would this court under such circumstances relegate the injured employee to his remedies under the compensation statutes? I doubt it.
2. Further, his injuries did not arise “out of his employment” as the first helper on an open hearth furnace. The accident occurred, not at the furnace, but at a bathhouse; taking a bath had nothing to do with tending the furnace — the most that can be said is that his work made a bath desirable; likewise it made a rest, a refreshing beer, food and sleep desirable. I observe not only a distinction, but a marked difference between an employee engaged in productive, supervised work for pay and one who has finished his day’s toil and, in accordance with his tastes, is enjoying a bath for free. The majority treats the two as equals for the purposes of the compensation laws'.
3. Lastly, his injuries did not arise in “the course of his employment,” but rather after his employment had ceased, after he had been relieved of his duties, no longer subject to control, and after he became a free agent to take a bath or follow such other pursuits as best served his tastes.
Cases referred to by the majority as indicative of “the present trend” of decisions do not, in my opinion, sanction the conclusion reached in this case.
In State Fund v. Industrial Com., 98 Colo. 563, 58 P. (2d) 759, the employee was at the place where he was obliged to be. The court said:
“The general rule is admittedly stated in 71 C. J., p. 695, §437. The particular fact which it is contended excludes this case from its operation is that while deceased was obliged, as a condition of his employment to sleep in the bunkhouse, board and room there were not furnished by the company, but he was charged $1.25 per day therefor.
*461“The commission found, and it is undisputed, that deceased and his companions were obliged to room and board at the bunkhouse as a condition of their employment. This was not only a company regulation, but a matter of stern necessity enforced by the location of the company’s mine and the total absence of other available accommodations. The rule above cited states that ‘the test is whether or not the workman is given a choice in the matter.’ Nerim had none. * * (Emphasis supplied.)
It cannot be said that Divelbiss had no choice — it was his own personal taste that led him to take a bath.
In Employers Co. v. Industrial Com., 76 Colo. 84, 230 Pac. 394, compensation was allowed on the finding of the commission that the injuries occurred “during claimant’s working hours.” In the case at bar, the evidence is conclusive and the commission so found that the injuries occurred outside of and after his working hours.
In Industrial Com. v. Golden Corp., 126 Colo. 68, 246 P. (2d) 902, the employee was injured while eating his lunch on employer’s premises. Here the court held that the injuries occurred during the time of the employment, and this might well be true for it does not appear whether the claimant was employed on an hourly, daily or monthly basis, and the reason he was eating his lunch and not working was the fact that the power shovel operator, who loaded his truck, went off to lunch.
In Industrial Com. v. Hayden Co., 113 Colo. 62, 155 P. (2d) 158, the claimant was required to be on the-premises and to get instructions for his work from the superintendent between 6:30 and 7: 00 A.M. The injuries occurred at 6:45 as claimant was hurrying to get his check preparatory to getting his instructions before entering the mine. The court said:
“Applying the test to the case at bar, we think it is fair to say that when the employee had arrived on the premises of his employer and ‘was hurrying down the pit car track’ to the check room to get his mine check *462and lamp, in direct and immediate response to the employer’s warning whistle, that he no longer had any choice in the matter. It required forty minutes for him to reach his place in the mine, and it was in the employer’s interest that he get to his work on time. We think this constitutes performing service within the meaning of the act.” (Emphasis supplied.)
Certainly Divelbiss had a choice and the employer was making no demands.
In the majority opinion, it is stated:
“The employer’s interest was actually served here.” Understandably it is not pointed out in what way the employer’s interest is being served, and my imaginative powers fail to produce a clue. I doubt if the benefits to the employer of the employee taking a bath is reflected in its earnings and assets statement.
In my opinion the judgment should be affirmed.