ing flowers but in addition helped put them into a window box and was injured, causing his death, no recovery was allowed. (Matter of Glatzl v. Stumpp, 220 N. Y. 71.)

The injury must be received (1) while the workman is doing the duty he is employed to perform, (2) and also as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence, and directly connected with the work. (Matter of Heitz v. Ruppert, 218 N. Y. 148.)

Returning to the dock was incidental to returning to his duties which he abandoned when he went to call on the captain of the Cullen. The deceased was not back in his employment until he landed safely upon the dock.

The award should be reversed, and the case dismissed. All concurred, except JOHN M. KELLOGG, P. J., and WOODWARD, J., dissenting. Award reversed and claim dismissed.

16. TAKING HOLIDAY

A New York salesman traveling in Kansas in his employer's automobile declared a holiday on the Fourth of July. While returning from a celebration the machine overturned and killed him. Commissioner Sayer, with comment on the argument that "a traveling salesman is always on duty," advised denial of death benefits on the ground that the trip had been entirely given over to pleasure: Johnson v. Ajax Rubber Co., S. D. R., vol. 18, p. 606, Bul., vol. 4, p. 91, Dec. 23, 1918.

17. ASSAULT BY ANOTHER THAN INJURED EMPLOYEE

This topic and the three that follow are more or less akin. They all involve connection of a person or persons other than the injured employee with the accident. Older cases illustrative of them are in Bulletin 81, pages 95-100, 205-217, and Bulletin 87, pages 139-148, 165.

A dispute arose between a negro and a contractor to whom he was delivering some sewer pipe. The negro began throwing bricks at the contractor. One of the bricks fractured the skull of an employee of the contractor who came to his employer's rescue. The injury was fatal. The courts affirmed awards to the employce's widow and children: Sassano v. Paino, Death Case, No. 72463, May 20, 1918; 186 App. Div. 927, Nov. 13, 1918; 226 N. Y. Rep. 699, June 3, 1919.

A carpenter, upon entering the washroom of a building that his employers were constructing, found a workman bound with ropes and released him. A foreman and other employees, authors

of the horseplay, resented the rescue and assaulted the carpenter. The foreman inflicted wounds upon the carpenter with a saw. Upon attempted appeal from an award to the carpenter, the Appellate Division held that no appeal had been taken (187 App. Div. 962, Mar. 5, 1919). Upon appeal, later, it affirmed the award with the following opinion, two justices dissenting:

MARIANO V. Krasnoger Bros., 190 App. Div. 65, Dec. 29, 1919.

LYON, J.: The question presented by this appeal is whether the injury arose out of the employment. Krasnoger Brothers were employed in constructing a building in the City of New York. The claimant was employed by them as a carpenter. Workmen in the employ of other employers were working on the same building. On August 10, 1918, during working hours, claimant entered a washroom and found a workman in the employ of the general contractor tied hand and foot and fastened to the floor. He asked claimant to untie him which the claimant did. Some workmen not in the employ of claimant's employer were angered at claimant's action and seized claimant and said they were going to tie him down, but claimant successfully resisted them. Before the altercation had entirely subsided, the structural superintendent having general charge of the work struck the claimant several times with a saw inflicting injuries for which claimant demands compensation. The State Industrial Commission awarded compensation against the employer, from which an appeal is taken.

The evidence is very conflicting. The evidence of the claimant and his witnesses tends to show that the attempt to tie the claimant had ceased, and that while the claimant was leaving the foreman struck him. The evidence of the foreman is that hearing the disturbance he went to the place to quiet it when claimant pushed him away and drew a knife; he attempted to restrain him but that claimant cut him in the shoulder three times; the foreman retreated to another room and the claimant followed him; the foreman picked up a saw and warned the claimant he would use it if claimant approached him; the claimant lunged several times at the foreman with the knife, and the foreman struck him with the saw. The State Industrial Commission made no general finding as to the actual transaction, but made the general finding that the claimant was assaulted by the foreman, and sustained severe injuries consisting of a linear fracture of the skull; an irregular transverse fracture of the left ulna, and lacerated wounds of the forehead and elbow, with severing of the ulna nerve. These injuries they find were accidental injuries, and arose out of and in the course of the claimant's employment.

The claimant had been handling chalk and went to the washroom just before the closing of the day's work to wash his hands. It would appear, therefore, that the claimant was in the discharge of his duties, and in the course of his employment. The employer in his report of the injury says that the employee was doing his regular work at the time he was injured. The claimant had been doing a merciful act to the employee in releasing him. There is evidence that the attempt to tie the claimant had ceased and that

he was struck by the foreman while leaving. This brings the case within the decision in Carbone v. Loft (219 N. Y. 579), in which the workman was struck three-quarters of an hour after the verbal altercation. The award of com

pensation was affirmed.

In Matter of Waters v. Taylor Company (218 N. Y. 248) the Court held that an employee was acting within the scope of his employment so as to be entitled to the benefit of the act when he left the strict line of his employment in the attempt to rescue another workman technically in the employ of an independent contractor from a danger which threatened his life and which cost the life of the intercessor. The Court held that it must have been within the reasonable anticipation of his employer that his employees would do just as Waters did if the occasion arose.

The award should be affirmed. All concurred, except COCHRANE and H. T. KELLOGG, JJ., dissenting. Award affirmed.

Some employees were carrying bundles of cardboard into their employer's factory. A passing stranger volunteered to help them. One of the employees resented his intrusion and, when a bundle broke, called him by an opprobrious name. The passerby assaulted the employee. A short time thereafter the employee, while at work, fell to the floor of the factory and fractured his jaw. Paralysis and mental incompetency ensued. The Commission, upon opinion of Commissioner Lyon, held the case clearly compensatable, whether the accident resulted from the assault or not. The Appellate Division affirmed the award unanimously and without opinion: Lorchitsky v. Gotham Folding Box Co., S. D. R., vol. 18, p. 616, Bul., vol. 4, p. 89, Dec. 23, 1918; -, Dec. 29, 1919.

App. Div.

An expressman asked the doorman of a motor car company for some tools and pipe left by plumbers who had been doing work in the company's building. The doorman had instructions to let no property go from the building without a pass. While he was deterring the expressman another employee of the company entered into an argument with him as to who had authority to deliver the property and assaulted him. The Commission awarded him compensation for injuries inflicted by the assailant. The Appellate Division affirmed the award unanimously and without opinion: Sullivan v. Detroit Cadillac Motor Car Co., S. D. R., vol. 20, p. 370, Mar. 28, 1919; App. Div. Nov. 12, 1919.

An employer was escorting some strike breakers after their day's work afoot along public streets to a subway station with the

idea that his presence would prevent assault upon them by strikers. They were set upon, however, The Commission awarded one of them compensation for injuries inflicted by the strikers: Romano v. Siff Bros., S. D. R., vol. 20, p. 430, Bul., vol. 4, p. 189, May 28, 1919.

An employee suffered a hernia in the course of work. While he was still weak from an operation for the hernia, his employer set him to watch a building. Three men entered the place. He Instead, at their suggestion,

was afraid to eject or report them. he shared his evening lunch with them and procured them some beer. Next day he found one of them in the building. Upon his failure to share his lunch again, the intruder struck him over the head, inflicting wounds for which the Commission awarded compensation, one Commissioner dissenting: Ministrath v. Vought & Co., S. D. R., vol. 21, p. 385, Bul. 5, p. 23, Oct. 29, 1919.

18. ASSAULT BY THE INJURED EMPLOYEE

In the Lorchitsky case, above, language of the injured employee provocative of the assault upon himself did not affect the compensatableness of his case. Likewise, language of a third party, co-employee or other, provocative of an assault by the injured employee, which results in his own injury, does not figure. Such assault, with wilful intention to injure, excludes compensation, according to 10. If such assault is made to protect the employer's property or to maintain law and order, interpretation of the phrase, "willful intention to injure," permits compensaThe following cases fall within the heading.

tion.

Two employees of the same firm got into an altercation as to which should load his motor truck from a railroad car first. One assaulted the other. A return blow broke his neck. The Commission awarded death benefits evidently upon ground that the assault had been made "in connection with the employer's work and in some sense in the employer's interest" (Bul., vol. 3, p. 99). The courts, however, took a different view of the case. The Appellate Division reversed the award, one justice dissenting. The Court of Appeals affirmed the Appellate Division's crder unanimously and without opinion (224 N. Y. Rep. 714). The Appellate Division handed down majority and minority opinions as

follows:

STILLWAGON V. CALLAN BROS., 183 App. Div. 141, May 8, 1918. WOODWARD, J.: This claim was originally disallowed, but upon a rehearing the Commission unanimously reversed the deputy making the report, and the employer and insurance carrier appeal to this court, contending that the injuries, which resulted in death to the claimant's husband, did not arise out of and in the course of his employment.

The Commission has found that Henry Stillwagon was employed by Callan Brothers, Inc., on the 21st day of May, 1917, and that he was engaged in the work of transportation, moving bricks from a car by the use of an automobile truck; that Stillwagon was employed as a chauffeur in the operation of such motor truck; that on the day in question Stillwagon was working for his employer at the Pennsylvania Railroad yards in New York, and that while engaged in the regular course of his employment he was struck and knocked down by a fellow-employee, which resulted in a broken neck and almost instant. death; that "Henry Stillwagon and a fellow-employee were each running a motor truck and had gone to the premises hereinbefore mentioned for the purpose of loading their trucks with brick from cars standing upon the track. Henry Stillwagon and his fellow-employee got into an altercation in respect to the right of priority in loading their trucks. Each one claimed the right to load his wagon first from one of the cars. After a short battle of words, the two men came to blows, and in the melee Henry Stillwagon was struck by his fellow-employee and knocked down with the result above mentioned."

Upon this basis of alleged fact, the Commission has held as a matter of law that the case is within the statute, and has awarded compensation to the widow and minor children.

The undisputed evidence is that there were three carloads of brick which were being unloaded; that Stillwagon had unloaded one car and one Vogt, the fellow-employee, had nearly unloaded a second car, and that the third car was to be unloaded jointly. Vogt reached the third car first and then Stillwagon came and demanded to know why Vogt did not take the remaining load from the second car. Vogt replied that he did not feel like it. Stillwagon began swearing at Vogt and invited Vogt out of the car, evidently for the purpose of fighting it out. Vogt started to leave the car, when he was assaulted by Stillwagon. Vogt struck back with his fist, delivering a blow which resulted in the death of Stillwagon. There is no confiict in the evidence; three eyewitnesses, including Vogt, testify to the circumstances, and all agree, not only that Stillwagon opened the quarrel, but that he struck Vogt before the latter had made any demonstration of fight, other than to leave the car. To call this an accident "arising out of and in the course of employment" requires some stretch of definition. (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 47], § 10; id., § 3, subd. 7, as am'd by Laws of 1916, chap. 622.) Stillwagon does not appear to have had any authority over Vogt; indeed, the evidence is that Vogt had two tickets for the unloadingof the cars, while Stillwagon had but one. Stillwagon's employment was that of a chauffeur with the incidental duty of helping to load the truck, and he initiated a quarrel with Vogt, and then left all of his legitimate work for the purpose of committing an assault upon Vogt, He was not employed as a fighter; his work was driving the truck and helping to load it, and thereis not a suggestion that any interest of the master was involved in this assault. Vogt was not interfering with any work of the employer; he appears to have