I dissent.
The respondent commission found that Miss Reinert “did not sustain any injury arising out of or occurring in the course of said employment.” The majority opinion annuls the award based upon this finding and concludes as a matter of law that the injury here “occurred in and arose out of the course of her employment.” I am of the view that the majority opinion has usurped the fact-finding function of the commission by drawing inferences which are contrary to those drawn by the commission, and in some instances, contrary to the evidence itself; and that the majority opinion has thereby reached conclusions which cannot be justified.
Miss Reinert was employed as a lifeguard and swimming counselor at the Girl Scout Camp following her interview with Mrs. Scholler. The recreational features of the work were discussed at the interview as well as the arrangements for free time during which the members of the staff could leave the camp and do anything that they might choose to do. No emphasis was placed upon the particular nature of any free time activity such as horseback riding, nor was Miss Reinert thereafter “required to obtain permission for the precise recreational activity away from camp in which she wished to engage,” as indicated in the majority opinion. With respect to horseback riding, Miss Reinert testified as follows: “Q. Did she (Mrs. Scholler) say something about having any opportunities to go horseback riding by yourself or when you were not with the little girls? A. Well, I don’t remember whether she did or not. ’ ’ Miss Reinert learned after arriving at camp that she could go horseback riding in her free time on payment of $1.00 per hour to Wilson’s Stables, which was the fixed charge for ‘all organized camps—whether campers or staff personnel. ’ ’
Under the evidence, the referee of the commission reported that “It is my opinion that the claimant in exercising her privilege on the afternoon of July 30, 1954, to join with other employees in horseback riding did not engage in any activity which can be designated as arising out of and occurring in the course of her employment.” And the commission, in *360denying reconsideration, said that “. . . there is no theory upon which applicant could be awarded compensation benefits nor her injury be held to arise out of and occur in the course of the employment.” It further said: “It is true that many employments are attractive because of recreational facilities which are available in the vicinity of the place of employment. This in the opinion of the Panel, does not result in the extension of the mantle of the ‘employer-employee’ relationship over such recreational facilities so as to make an injury sustained while the employee enjoys such recreation compensable.”
The facts in the present ease are neither unusual nor complicated. The record presents the ordinary situation where an employee accepts a particular employment because of the desirable nature of the work and because of the opportunities afforded during her free time for recreational activities which she enjoys. It is a matter of common knowledge that many persons accept such desirable employment each year in the recreational camps of our character building agencies, receiving their sustenance and little or no additional compensation. Similarly, many persons accept employment each year with commercial enterprises in our resort areas. No doubt, most of these persons are induced, at least to some extent, to accept such employment by the lure of the numerous recreational activities which may be enjoyed by the employees in their free time. Thus, in a very loose sense of the word, it may be said that they find some “compensation” in the enjoyment of their free time activities, but it cannot be said that these free time activities, away from the premises of the employer and beyond the sphere of any right of control by the employer, constitute “part of the employment” or “part of the compensation to be paid by the employer for petitioner’s work,” as stated in the majority opinion. The employer here paid nothing, directly or indirectly, in connection with the employees’ free time horseback riding but, on the contrary, the employees paid directly to the stable all charges which they incurred for such riding.
It is significant that neither the place where the accident occurred, the equipment being used, or the nature of the activity was such as to give the employer any right of control of the employee’s free time recreational activity at the time and place where the injury occurred. The stable was conducted by an independent third party at a location approximately V/2 miles from the camp of the employer and the *361accident occurred at a point approximately 1 mile from the camp. Neither the horse trail on which Miss Reinert was riding nor any other such trail ran through the employer’s camp, or any closer than one-half to three-quarters of a mile therefrom. Hence the injury here was as much apart from the employment as were the injuries in the eases hereinafter cited, which injuries were held not to be compensable; and while the employment here, as in those cases, may be said to have brought the employee to the place from which she departed for her free time recreational activity and may be said to have afforded her the opportunity for such activity, it cannot be said that the injury sustained in that activity arose “out of and in the course of the employment. ’ ’ It therefore appears to me that the majority opinion here is contrary in principle to our recent decisions in Liberty Mut. Ins. Co. v. Industrial Acc. Com., 39 Cal.2d 512 [247 P.2d 697], and Fireman’s Fund Ins. Co. v. Industrial Acc. Com., 39 Cal.2d 529 [247 P.2d 707]; and that it is likewise contrary in principle to the cases of Graf v. Montecito County Water Dist., 1 Cal.2d 222 [34 P.2d 138], and Arabian American Oil Co. v. Industrial Acc. Com., 94 Cal.App.2d 388 [210 P.2d 732], in which compensation was denied to employees who were injured while engaged in the permitted use of their employers’ equipment for free time recreational activity away from the premises of their employers.
There is no conflict in the testimony regarding the nature of the trip on which Miss Reinert was injured. It shows that “That trip had nothing to do with anyone’s duties in connection with the camp”; that her superior had “no interest in their activities in their free time” but “just hoped they had a good time”; that on the afternoon in question “the horseback ride and swimming was considered free time for everybody”; that from 2:30 p.m. on “all of the unit leaders and counselors and assistant leaders were free”; that all that her superior required in connection with their free time was that they “checked out and checked in”; that the purpose of so checking was “Just so I knew where they were going— so if their parents came to look for them in an emergency ...” Miss Reinert testified that it was a “voluntary matter” on her part “to decide to go riding”; that “I wasn’t busy, and I just thought I would like to go horseback riding, and so I went to Mrs. Scholler and asked her if there is anything to do, and she said there wasn’t, so I went riding.” It thus *362appears that the “permission” to which reference is made in the majority opinion amounted to nothing more than permission for the allowance of free time in addition to the regular day off, and that the employees were “encouraged” to go horseback riding only in the sense that they were encouraged to use their free time to engage in any recreational activity of their own choosing. The employees were not required to go horseback riding at any time during their free time, and Miss Reinert could have decided on the afternoon in question to engage in mountain climbing, boating, swimming, diving, sun-bathing, fishing, touring in her own car, patronizing places of public accommodation or amusement, or any other activity which might be enjoyed in the general area. It was she who suggested that some of her coworkers go with her on their free time on that day, first for a ride and then for a swim at a lake located five miles from the camp of her employer. Some followed her suggestion, and others did not, but the fact remains that she and the others were at liberty to go wherever they chose and to do anything they desired to do. Such activity was typical of the free time activity enjoyed by employees generally when relieved from the duties of their employment and cannot be said to be “ part of the employment.”
The cases upon which the majority opinion relies do not sustain the conclusion reached therein. Typical of the cited cases are those in which injuries have been held compensable under certain circumstances when they occurred on premises of the employer (Pacific Indem. Co. v. Industrial Acc. Com., 26 Cal.2d 509 [159 P.2d 625]; California Cas. Indem. Exch. v. Industrial Acc. Com., 21 Cal.2d 751 [135 P.2d 158]; Winter v. Industrial Acc. Com., 129 Cal.App.2d 174 [276 P.2d 689]; Employers’ etc. Corp. v. Industrial Acc. Com., 37 Cal.App.2d 567 [99 P.2d 1089]) or at places customarily used as the immediate approaches to the premises of the employer (Freire v. Matson Navigation Co., 19 Cal.2d 8 [118 P.2d 809]; State Comp. Ins. Fund v. Industrial Acc. Com., 194 Cal. 28 [227 P. 168]) or during brief deviations for personal reasons from the actual work of the employer, or at a time when the employee could be said to be acting both on behalf of himself and his employer (Phoenix Indem. Co. v. Industrial Acc. Com., 31 Cal.2d 856 [193 P.2d 745]; Lockheed Aircraft Corp. v. Industrial Acc. Com., 28 Cal.2d 756 [172 P.2d 1]; Western Pac. R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754]; Western Pipe etc. Co. v. Industrial Acc. Com., 49 Cal.App.2d *363108 [121 P.2d 35]). These eases demonstrate that the courts have consistently and conscientiously endeavored to apply the rule of liberal construction (Lab. Code, § 3202) in determining whether any given injury “arose out of and in the course of” the employment as required by our statute. (Lab. Code, § 3600.) However, courts may not in good conscience nullify the requirements of the statute under the guise of liberal construction, and I am of the view that the majority opinion here results in such nullification.
With respect to the letter which was denied admission in evidence, I agree that it was covered in substance by the other testimony of Mrs. Scholl er; but I do not believe that the use of the word “compensate” or “compensation,” considered in context in either the letter or the testimony, would support a finding or conclusion that the employee’s free time activities of her own choosing, far removed from the employer’s premises and outside of the sphere of any right of control by the employer, were “part of her employment” or that the injury incurred in such activities “arose out of or in the course of” her employment. On the other hand, I am of the view that the commission’s finding to the contrary was abundantly supported by the evidence.
I would affirm the award.
Schauer, J., and McComb, J., concurred.
The petition of respondents Central Orange County Girl Scout Council and Globe Indemnity Co. for a rehearing was denied April 18, 1956. Spence, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.