Cеrtiorari upon the relation of employer and insurer to review a decision of the Industrial Commission reversing part of the determination of the rеferee.
The facts in support of his position were presented by employee, and no evidence was offered by employer or its insurеr. The employer was engaged in the business of supplying products to cooperatives and had a number of warehouses. The employee held the position of manager of warehousing operations. His duties included responsibility for receiving, storage, and shipment of merchandise in Minnеapolis and in branch offices at Milwaukee and Mason City. He also had supervision of custodial and maintenance help including janitors and wаtchmen and was responsible for all of the repairs on maintenance in those buildings, *490 plus the office building of his employer.
The building in which the accident in question occurred is located at 2101 Kennedy Street N. E., Minneapolis. It included, besides the warehouse, employee’s office, an order department, a service and a mаintenance shop. There was at least one employee, a watchman, on duty at the warehouse 24 hours a day 7 days a week. Although the hours of most other employees were from 7:45 a. m. to 4:15 p. m., 5 days a week, the employee’s hours were irregular, due to his managerial position. Alоng with his other duties he was specifically in charge of the Minneapolis warehouse. From time to time, scrap lumber and other material would aсcumulate there and part of his duties were to dispose of the scrap and keep the warehouse clean.
On Sunday, August 21, 1955, between 9:30 and 10 a. m. thе employee went to the Minneapolis warehouse for three undisputed reasons, according to his testimony; (a) to talk with and check on the watchman-janitor who was on duty at the time; (b) to help in the process of cleaning up the maintenance shop; and (c) to pick up some salvage materials he was purchasing for his personal use. After arrival at the warehouse he stated that he looked up the janitor-watсhman but found that he was in the basement running a noisy compressor so he did not talk with him at that time. The employee then went to the maintenance shop where the lumber materials, certain supply items, and numerous power tools, including a power saw, were located. While there, the janitor-watchman came to that room and the employee talked with him for some time. As he was doing so the employee proceeded to сut the scrap lumber to size on the power saw. He testified that some of it was in 16-foot lengths “which made it rather difficult to carry them down the elevatоr” and that inasmuch as he had to cut the lumber he was cutting it in lengths required for the intended use in connection with the construction of a “shack” he was building for his yоung son.
The referee found, among other things, that the employee suffered personal injury to his right thumb and his right index and middle fingers while in the act of using a power saw to cut certain wood purchased from the employer for his own personal use but that the injury did not arise out of and in the course of his employment. On appeal the commission reversed part of the referee’s findings and found that the injury *491 did arise out of and in the course of the employee’s employment.
The sole question presented on appeal is whether the injury sustained by the employee arose out of and in the course of his employment. The employer and insurer assign the commission’s findings on that point as error as a matter of law.
The employer and insurer contend that the injury to the employee under the circumstances here did not arise out of and in the course of his employment; first, because the latter incurred increased risk of injury not contеmplated by his employment contract when he operated the power saw involved; and secondly, because he was performing an act purely personal to himself at the time of the injury.
In connection with his first point the employer and insurer argue that an employee who assumеs an unnecessary position of peril which is outside his regular employment and is injured as a result thereof is not entitled to compensation. They сontend that such an employee may not unnecessarily increase the risk of injury to himself beyond that reasonably contemplated by the emрloyment contract and that, if he sustains an injury while performing an act not reasonably contemplated, the injury does not arise out of and in the course of his employment, citing 7 Schneider, Workmen’s Compensation (Perm, ed.) § 1646; Rautio v. International Harvester Co.
There was undisputed testimony here that all employees were authоrized to use the power equipment, although it was primarily used by the maintenance man, and that while the duties of the employee did not directly involve the operation of the power saw he had operated it on previous occasions when he was in the shop checking on a рroject or helping with a particular project. We cannot say under such a record that the mere fact that he happened to be sawing the lumber which he had purchased from the employer for his own personal use made the situation different from what it would have been if he hаd been *492 sawing it for someone else who had made a similar purchase from the employer.
Employer and insurer stress El Reno Mill & Elev. Co. v. Kennedy,
We have repeatedly said that it is the function of this court upon appeal from a decision of the Industrial Cоmmission to determine whether the evidence is such that the commission might reasonably have come to the conclusion which it did. If so, the findings will not be disturbed unlеss they are manifestly contrary to the evidence or unless consideration of the evidence and inferences permissible therefrom would сlearly require reasonable minds to adopt a contrary conclusion. Sorensen v. P. H. Thompson & Son,
We hold, under the record here, there was evidence to reasonably sustain the findings of the commission.
Costs and disbursements and attorneys’ fees in the sum of $250 in connection with the proceedings here are allowed the employee.
Affirmed.