¶1 (dissenting).
¶2 At the time of his injury and death the decedent, his wife and his wife’s brother were traveling together in the decedent’s automobile from Albuquerque to Roswell where decedent and the brother-in-law were to assume the duties of their employment. The fortuitous circumstance that the employer in the case of decedent, and to compensate for the day’s wage the latter could have earned by remaining in Albuquerque at work that day, voluntarily and without request or insistence by decedent agreed to and did pay him for the day to be consumed in travel from Albuquerque to Roswell, did not make “travel” an incident of his employment, nor remove him from the exception denying recovery for injuries, save through employer’s negligence,' “occurring while on his way to assume the duties of his employment”. 1941 Comp. § 57-912(0.
¶3 The only difference between the brother-in-law’s status and that of decedent is payment of this one day’s wage. Admittedly, the former, who suffered injury in the same accident, falls squarely within the exception. This was so obvious, as counsel explain, that claim was not even made ,on account of his injury. The decedent was. no less “on his way to assume the duties of his employment” unless the chance payment of one day’s wage to cover travel time alters the situation.
¶4 In my opinion, a circumstance so fortuitous should not affect a determination of the question whether an employee’s injury substantially arises “out of and in the course of his employment,” (1941 Comp., §. 57-906(c), as defined in § 57-912(7), particularly, since said last-cited section expressly declares “injuries sustained in extra-hazardous occupations … shall: not include injuries to any workman occurring while on the way to assume the-duties of his employment”. It is worthy of note that the Idaho statute construed in. Wineland v. Taylor, 59 Idaho 401, 83 P.2d 988, a case relied upon in the prevailing opinion, does not contain the exception just quoted from our statute.
¶5 If the record before us disclosed that decedent’s employment made travel an incident of his employment, a different situation would be presented. We do not have that kind of case and there is nothing in the evidence to remove decedent from the effect of the exception and place him within the so-called “travel cases” in which recovery is generally allowed.
¶6 I dissent.