Your letter of February 7, calling our attention to Section 7, Article 6243-8, Revised Statutes of 1925, as amended, relating to the rights of a fireman who is injured or killed on his way to work has been given our careful consideration. You ask this question:

"If a paid fireman who lives in a residence or some other place some distance from the fire station at which he works, should be injured or killed in an accident while on his way to the fire station to go on duty, or coming from the fire station from his duties at the fire station; would his injury or death, as the case right be, be considered as having occurred "while in and/or in consequence of the performance of duty as a fireman and would he be eligible for retirement and partial, permanent, or death benefits"?

We do not find where this particular statute has been construed by our courts. The terms used therein, however, are almost identical with, or at least very similar to, the conditions required for a recovery contained in the work-

*2 Himorable Beyns Eatterfield - page 2 "That in an action to reoover danages for peraonal injuries sustained by an enployac in the course of tie enployent or upon death roeulting from peraonal injuries sustained."

In construing said section of the Workmen's Com pensation Statute, the guestion toa many times been before the court as to wust is meant by the exression "in the course of his arglopent." The holdings of our courts are well sumarized in the opinion of the Suprese Gourt in the case of Ssith ve. Texas mployers' Incuranoe Association, 105 S. W. (2d) 192, which reads as follows: "(1) It is now firnly settled by the docisiona constreing our atatute that in order that an enployee may recover under the provisi:ne of this law (the com-penestion law), proof that his injury occurred, while he was engaged in or about the furtherance of the enjoy. er's affairs or business is not alone surficient. He must also show that bis injury was of such kind and character as had to do with and orlrinated in the enployer's work, trade, business, or profession." Texas Indemnity Insurance Conpeny v. Clark, 125 Tex. 96, 81 S. W. (2d) 67, 69, and authorities there cited. " $(2,3)$ It has further been firmly settled that compensation is not allomable for injuries to enployees while going to or returning from the place of their employment, except in certain particular cases. Viney v. Casualty Reciprocal Exchange (Tex. Civ. App.) 62 S. W. (2n) 1088; London Guaranty &; Accident Conpany v. Smith (Tex. Civ. App.) 290 S. W. 774 (writ refused); American Indemnity Co. v. Dinkine (Tex. Civ. App.) 211 S. W. 949, oxpressly approved in Iusbermen's Reciprocal Asnociation v. Rehnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. S. 1402; Lloyds Casualty Conpany v. Rodriguez (Tex. Civ. Ipp.) 36 S. W. (2d) 261 (writ refused). This conaluaion is based on the premise that one injured upon

*3

Honorable Bayne sattertield - page 3

the streets or highuays while going to or from his work unfers his injury as a consequence of risks and hazards of the streets and highways to which all members of the public are alike sub- ject, and not as a consequence of risks and hazards having to do with and criminting in the work, business, trade or profession of the employer". The stutute clearly imnline, as has frequently been held, that the injury has to do with and originates in the employment when such injury is the result of some peril, risk, or hazard inherent in or incident to the conduct of the work or business." In view of the holding of our supreme Court as contained in the opinion above quoted, we are of the opin- ion your question should be, and therefore is, answered in the negative.

Yours very truly

ATEORNEY GENIRAL OF TEXAS

$/s/$

George W. Marcus Assistant

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Approved Feb. 16, 1945 /s/ Carlos C. Ashley First Assistant Attorney General Approved Orinion Comittee By 2:3 chairman