had a perfect right to be where he was, and to have been there prior to Stillwagon, and to have been engaged in the work for which he was employed. It was Vogt who had the card for the unloading of this third car, and while it is probably true that Stillwagon had a right to work upon this same car he had no duty there, under his employment, except to get his load of brick and go away. Stillwagon's compensation did not depend on the number of loads he drew; he was working by the day, and there is nothing in the evidence which suggests that Vogt was interfering with anything which Stillwagon was bound to do for the employer. All there was of it, Stillwagon picked a quarrel with Vogt and then left his occupation as a chauffeur for the purpose of carrying out his desire to punish Vogt for some real or imaginary grievance, in no wise affecting the interests of the employer. The fight which ensued had none of the elements of an accident about it. It was initiated and invited by Stillwagon, not for any purpose of the master, but to gratify his own personal desires, and the fact that it occurred during the hours when his services belonged to the employer does not give it the character of having been done in the course of that employment.

If Stillwagon had left his employment for the purpose of assaulting some person not in the employ of Callan Brothers no one would seriously contend that the master could be held liable for the injury, for he had not employed Stillwagon for any such purpose, and did not encourage or suggest the assault, and, in the absence of serving some purpose of the master, we are unable to discover any reason for holding that the insurance carrier in the present instance is in any wise liable to the claimant.

It seems to us entirely clear that this case comes squarely within the exception found in section 10 of the Workmen's Compensation Law. It is there provided that compensation shall be paid without regard to fault as a cause of such injury, "except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another," etc. Obviously Stillwagon's injury was occasioned by the willful intention of the injured employee to bring about the injury" of Vogt; he initiated the quarrel and he struck the first blow, and, in the natural course of events, he was injured himself. It is highly probable that Vogt did not intend the result of his blow; he had no time to deliberate upon that; he was assaulted and retaliated, and Stillwagon was killed, not as the result of an accident but as the culmination of a fight which he had started. The case of Matter of Heitz v. Ruppert (218 N. Y. 148), relied upon by the respondents, was concededly a close case, and was justified upon the proposition that it was the duty of the claimant to take care of the horses with which he was intrusted, and to see that they were not injured by injudicious wetting or otherwise by a fellow-employee, and that where a quarrel arose over the act of an employee in improperly wetting the horses, and an injury resulted from the personal encounter which ensued, the accident arose out of and in the course of the employment. Here no such facts are involved; there was no effort to show that any possible interest of the master could be served by Stillwagon committing an assault upon Vogt. In Matter of Heitz v. Ruppert (supra) the court say: "The words ' arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both out of' and 'in the course of' employment. The injury must be received (1) while the work

man is doing the duty he is employed to perform, and also (2) 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." Tried by this test, the claimant's case is not within the statute. Stillwagon was not doing the duty he was employed to perform when he left his work for the purpose of assaulting Vogt, nor was the injury a natural incident of the work which he was required to perform. The injury resulted solely because Stillwagon, in serving his own purposes, willfully sought to injure Vogt, and the statute has specially excepted such injuries from its operation. The award should be reversed. All concurred, except JOHN M. KELLOGG, P. J., dissenting, with memorandum.

JOHN M. KELLOGG, P. J. (dissenting): Vogt and Stillwagon were removing brick from three railroad cars by automobile trucks. Stillwagon had unloaded his car. There was another truck load remaining in the car that Vogt was unloading. Arriving at the cars, Vogt, instead of going to the car he had been unloading, went to the remaining car which neither of them had worked upon. Stillwagon claimed that Vogt should finish his own car, as the work was more difficult, and until then should not remove brick from the third car. They were both in the third car and were disputing about who was entitled to load first, and somehow, as a result of that dispute, the parties came to blows and the accident happened.

We quote from Matter of Heitz v. Ruppert (218 N. Y. 148): "Altercations and blows may, however, arise from the act of a fellow-servant while both are engaged in the employer's work and in relation to the employment. The employer may be badly or carelessly served by two men engaged in his work, and yet it may be inferred, when one injures the other in a quarrel over the manner of working together in a common employment, that the accident arose out of the employment and was not entirely outside of its scope, if it was connected with the employer's work and in a sense in his interest."

I favor an affirmance.

Award reversed and claim dismissed.

A traveling salesman for a New York firm got into a brawl with a druggist in Detroit, Michigan, in the course of which the druggist fractured the salesman's skull with a baseball bat. The salesman died two days later. In a trial that ensued testimony as to which was the general aggressor and which began the assault was conflicting. The Appellate Division, accepting the AttorneyGeneral's statement that the salesman had called the druggist vile names and had turned and struck him upon being led out of the store, affirmed denial of award by the Commission unanimously and without opinion: Jacobowitz v. Ex-Lax Mfg. Co., Death Case, No. 55890, Aug. 8, 1918; 187 App. Div. 915, Jan. 15, 1919.

In a like case of conflicting testimony the Appellate Division, with opinion reviewing the facts, also accepted the Commission's findings denying award. The opinion is as follows:

MULLER V. COHEN, 186 App. Div. 845, Mar. 5, 1919.

LYON, J.: The vital question in this case is whether the injury was induced by the acts of the employee in the line of his duty, or outside it.

The claimant was the superintendent of an apartment house in the city of New York. An assault was committed upon him by a tenant of the building. The superintendent's version of the affair was that the tenant asked him for a key to the front door, and that the superintendent told him that he had nothing to do with the keys, and with an oath the tenant struck him in the face. The claim of the tenant is that the evening of the day before the assault the superintendent had gone to the tenant's rooms, and in the absence of the tenant had inquired of the tenant's wife where her husband was working, when he would be home, and what time he left in the morning. The wife, considering the questions insulting, did not answer them, and the superintendent after talking about the fixtures of the room left. The wife told her husband about the visit of the superintendent, and the next morning the husband met the superintendent on the stairs and asked him why he went to his wife and asked fifty cents for the key, why should he not have come to him. The superintendent said to him, "Get out, I have no key, the boss has the key," and with those words hit the tenant upon the wrist with a stick which he had in his hand. Thereupon the tenant struck him in the face. He fell upon the iron railing resulting in an increase of a small hernia. These in short are the two versions of the assault.

Under the testimony in the case the credibility of the witnesses was a question of fact for the determination of the Commission. They evidently believed the version of the assault given by the tenant. Nor could we say, if the matter were for our decision, that in view of the final testimony given before the Commissioners their judgment was not correct. Assaults are accidents arising out of the employment within the meaning of the Workmen's Compensation Law only when the employee is engaged in his master's business. (Griffin v. Roberson & Son, 176 App. Div. 6.)

The award should be affirmed. Determination unanimously affirmed.

An old man working in an abattoir was the butt of his co-employees. One of them coiled a bull's penis about his neck. In resentment he struck the supposed author of the indignity with the penis. The employee thus mistakenly assaulted kicked him. in the testicles. The Commission awarded compensation for his injuries, two Commissioners dissenting. It based its award upon the following opinion:

VERSCHLEISER V. STERN & SON, Bul., vol. 4, p. 102, Dec. 31, 1918. LYON, Commissioner: I suppose it was the employer's duty to furnish the claimant with protection against insult while doing his work, and that claimant had the right to resent the insult put upon him. Under the circumstances here disclosed, I do not think it necessary to determine who began the melee. Certainly the claimant did not begin it. He merely mistook the person who subjected him to the insult. Some co-employee put upon

claimant an indignity which he had a right to resent. I do not think that claimant's resentment of the insult can be said to be a wilful intent to bring about the injury or death of Dudler. Clearly the injury grew out of the employment. I think this is in line with our decision made December 20, 1916, in Slane v. Cording, et al. The award should be confirmed and case continued.

Upon appeal the Attorney-General cited testimony to indicate that the injured employee had not done any striking previously to the kicking. The Appellate Division, however, reversed the award upon authority of the Stillwagon, Griffin and DeFilippis decisions. The reversal was without opinion, except dissenting opinion by Justice Kellogg, as follows:

VERSCHLEISER V. STERN & SON, 188 App. Div. 937, May, 1919.

JOHN M. KELLOGG, P. J. (dissenting): The claimant, at the time of the injury, was engaged in removing offal from a slaughter house, with a hand truck. He was somewhat advanced in years and, owing to his age and perhaps to some peculiarities, the other employees were accustomed to pick on him and this made him somewhat irritable. While doing his work, a fellow employee threw a bull's penis around his neck. The claimant evidently understood, from the situation of the parties, that Dudler had committed the assault, and he immediately struck Dudler. Dudler kicked him, inflicting serious injuries, for which compensation has been allowed. If the old man had been right in assuming that Dudler committed the assault upon him, his striking back would have been a natural result of the act, and it might then well be said that the claimant would be within the act. (Matter of Heitz v. Ruppert, 218 N. Y. 148.) "Altercations and blows may, however, arise from the act of a fellow-servant while both are engaged in the employer's work and in relation to the employment. The employer may be badly or carelessly served by two men engaged in his work, and yet it may be inferred, when one injuries the other in a quarrel over the manner of working together in a common employment, that the accident arose out of the employment and was not entirely outside of its scope, if it was connected with the employer's work and in a sense in his interest. Such cases necessarily present close questions of fact." (Id. 153.) The mere fact that the claimant was mistaken as to the aggressor does not show that he attempted to commit an affirmative assault on Dudler. He was defending himself and, with many fellow-workmen around, hit the person who appeared to be his antagonist. Within the liberal spirit of the act, the claimant should be treated in the same manner as if he had actually struck the party who assaulted him; that was what he intended to do. He was clearly in error as to the identity of the assailant, and in that respect his assault upon Dudler was a mistake. Nevertheless, it was not such an intentional, affirmative wrong, that it put him outside the protection of the act. Compensation is awarded without regard to fault, and the mistake of the claimant as to who assaulted him is not fatal to his claim. We find nothing to the contrary in Stillwagon v. Callan Brothers, Inc. (183 App. Div. 141; affd., 224 N. Y.

714). There the injured person committed an unlawful intentional assault upon another, and it was held that he had brought the injury upon himself by his illegal act. The claimant in this case believed that he was protecting himself from his real assailant. He was mistaken in the identity of the aggressor but, as we have said, his mistake is not fatal to his claim. The award should, therefore, be affirmed. WOODWARD, J., concurred.

19. UNINTENTIONAL INJURY BY ANOTHER THAN INJURED

EMPLOYEE

The case of Clarke v. Sherman, in which the injured employee lost an eye by the unintentional thrust of a fellow employee's pitchfork, has been noticed above, page 84.

Two employees were standing by their employer's team.

One

of them rescued a blanket that was falling from a horse and in so doing unintentionally struck the other with it in such wise as to knock him down and fracture his pelvis. Death resulted from the injury. The Commission awarded death benefits. Upon appeal the carrier alleged fooling or horseplay but the Appellate Division affirmed the award unanimously and without opinion: Downey v. Vandewater, Case No. 47807, Jan. 17, 1918; 185 App. Div. 917, Sept. 11, 1918.

The following two cases of accidental injuries, both occurring in garages, turn upon the point of gratification of curiosity.

In the first case, two employees were at work in their employer's garage. A dynamite percussion cap that one of them was examining exploded and destroyed an eye of the other. The Appellate Division has written two opinions in the case in the first of which it holds that unintentional injury to an employee due to gratification of curiosity by a fellow employee is not compensatable but in the second of which it holds that such injury due to carelessness or negligence of a fellow employee is compensatable. The curiosity of the fellow employee, it says, is not incidental, but the negligence or carelessness of a fellow employee is incidental to the employment. It reversed the award in the first decision but affirmed it in the second. The statements of facts in the two opinions differ in that the first declares that the explosive cap was not found upon the employer's premises while the second declares that it was, the restatement being due to remanding of the case in the interim to the Commission and the making of new findings by it. Upon the