¶1(dissenting).
¶2I respectfully dissent.
¶3This appeal involves the question of whether a disability resulting from a self-inflicted gunshot wound sustained by the plaintiff, a general manager of a liquor wholesale company, is compensable under the Workmen’s Compensation Act. On the date in question, plaintiff arrived early at work and shortly thereafter was found on the floor of his office with a gunshot wound to the head, still holding a pistol.
¶4The evidence at trial was conflicting as to whether the shooting was accidental or intentional. Plaintiff testified that he decided to clean a pistol kept by him in his desk at the office and that it accidentally discharged. A psychiatrist and a psychologist who treated plaintiff after the injury, testified that plaintiff stated that he had been worried over the possible loss of his job and had responded to questions, indicating that the injury was intentional and self-inflicted.
¶5The dispositive issue governing the case before us is whether the injury sustained by plaintiff was reasonably incident to and arose out of his employment. I am unable to agree with the majority that the trial court’s key finding, that the injury “arose out of” plaintiff’s employment, is supported by substantial evidence. Here, in my opinion, the record is devoid of substantial evidence indicating that at the time of plaintiff’s injury he was engaged in an activity reasonably incident to or in furtherance of the employer’s business, or that plaintiffs injury stemmed from a risk that he was subjected to by reason of his employment.
¶6In order to establish liability under the Workmen’s Compensation Act, a claim must be supported by substantial evidence indicating the existence of “an accidental injury arising out of, and in the course of [the worker's] employment” and that the injury was “reasonably incident to [the worker’s] employment.” NMSA 1978, § 52-1-28. See also NMSA 1978, § 52-1-19; Hernandez v. Home Education Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982).
¶7Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion. Gutierrez v. City of Gallup, 102 N.M. 647, 651, 699 P.2d 120 (Ct.App.1984); Crane v. San Juan County, 100 N.M. 600, 602, 673 P.2d 1333 (Ct.App.1983). Whether the record contains substantial evidence is a question of law. Pickens-Bond, Construction Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).
¶8In the present case, although the injury occurred on the employer’s premises during work hours, the injury did not “arise out of” plaintiff’s employment, nor was the injury “reasonably incident” to his employment. The necessity that an injury “must arise out of” and be reasonably incident to a worker’s employment, requires a showing that the injury was caused by a risk to which the worker was reasonably subjected by reason of his employment. NMSA 1978, § 52-1-28; Velkovitz v. Penasco Independent School District, 96 N.M. 577, 633 P.2d 685 (1981); Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966); Beckham v. Estate of Brown, 100 N.M. 1, 664 P.2d 1014 (Ct.App.1983); McDaniel v. City of Albuquerque, 99 N.M. 54, 653 P.2d 885 (Ct.App.1982); Losinski v. Corcoran, 97 N.M. 79, 636 P.2d 898 (Ct.App.1981). See also Shadbolt v. Schneider, Inc., 103 N.M. 544, 710 P.2d 738 (Ct.App.1985).
¶9Whether an injury occurs in the course of employment relates to the time, place and circumstances under which the accident takes place. Sena v. Continental Casualty Co., 97 N.M. 753, 643 P.2d 622 (Ct.App.1982). If the plaintiff was not reasonably involved in fulfilling the duties of his employment at the time of the injury, he was not acting within the course of his employment. Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978). As stated in McDaniel v. City of Albuquerque:
The “arising out of” requirement excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause; the causative danger must be peculiar to the work, it must not be independent of the relation of master and servant. After the event it must appear that the accidental injury had its origin in a risk connected with the employment and have flowed from the risk as a rational consequence.
¶10Id.99 N.M. at 55-56, 653 P.2d at 886-887 (emphasis in original).
¶11In Adamchek v. Gemm Enterprises, Inc., 96 N.M. 24, 627 P.2d 866 (1981), the supreme court considered a claim arising out of an incident whereby a workman was injured at work by a gunshot inflicted by an officer of a corporation who was playing with a revolver. The weapon accidentally discharged striking the employee. On appeal, the supreme court held that plaintiff could sue his employer in tort and that his personal injury action was not barred by the exclusivity provisions of the Workmen’s Compensation Act because the shooting was not a risk reasonably incident to the employee’s work and the resulting injury was not caused by a danger peculiar to the plaintiff’s employment. The court also held:
[A] pistol in the hands of a corporate executive cannot be said to be a device or tool of his trade normally used in the performance of his executive duties. The negligent injury of an employee through the accidental discharge of such a pistol does not ordinarily arise out of the employment.
¶12Id. 96 N.M. at 25, 627 P.2d at 867.
¶13The rationale applied by the court in Adamchek is applicable here. It is not sufficient that the injury occur during the course of an individual’s work, it must also arise out of the claimant’s employment and stem from a risk reasonably incident to the claimant’s work. See also Ward v. Halliburton Co., 76 N.M. 463, 415 P.2d 847 (1966); Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579 (1954). Requisite proof that the injury here “arose out of” or had its origin in a risk reasonably emanating from plaintiff’s employment, is absent in the in: stant case.