Assaults. Injuries caused by third persons

while it was being driven to the boy's home she fell off and was injured. An attempt was made to hold the master liable for the act of the volunteer, on the ground that the other employé had implied authority to hire this volunteer in this emergency. The court, however, held that there was no such implied authority and denied compensation. Houghton v. Pilkington, 107 L. T. Rep. 235; The Policyholder, Nov. 16, 1912, page 768.

21. Saving life of another.

An accident occurring while an employé was making an attempt to save the life of a fellow workman was held to arise out of and in the course of the employment. Matthews v. Bedworth (1899), 1 W. C. C. 124.

22. Assaults. Injuries caused by third persons.

Cases of assault have not been decided uniformly. The authorities are cited below, but no general rules of anything like universal applications can be deduced from them. On principle, the better rule seems to be that an assault which has no connection with the work in which the employé is engaged does not entitle the workman to compensation. On the other hand justice appears clearly to have been accomplished in awarding compensation in those cases where robbery was the motive of the assault, or where it was committed to prevent an employé from performing his duties. Thus a cashier employed regularly to carry wages by train to a colliery was shot by a stranger in the course of the journey and the wages were stolen. It was held that his death was caused by an accident and that the accident arose out of and in the course of his employment. Nisbet v. Rayne & Burn (1910), 2 K. B. 689; 3 B. W. C. C. 507. A night watchman on the premises of his employer, who while in the discharge of his duties was shot by a burglar, from the effects of which he died, was held to have been killed in the course of his employment and that his dependents were entitled to

Assaults. Injuries caused by third persons

compensation. Re Margaret Evans, Claim No. 4204, Ohio Indus. Acc. Bd., May 29th, 1913. A street car conductor injured by the assault of a disorderly passenger while the conductor is attempting to compel the passenger to obey the company's rules, is entitled to compensation, as the injury arises out of the employment. Ruling of Washington Industrial Commission, First Annual Rep., page 476.

Applicant was conducting a hotel at Floriston, California. Late one evening he ejected two intoxicated men who desired entry to the hotel. Force was used and applicant broke the long bone of the middle finger of his right hand, dislocated certain joints of the other fingers, and strained or otherwise lamed his left hand, with the result that his right hand is rather seriously crippled. Held that the applicant clearly established the fact that he was injured while performing a service growing out of and incidental to his employment, but that he failed to establish as a fact, that in striking one of the intruders for the use of an abusive epithet he was acting within the line of his duty to his employer, and consequently compensation was denied. It was further held that it was applicant's duty to use no more force than was necessary to accomplish the end desired. Weston v. Crown Columbia Paper Co., Cal. Indus. Acc. Bd., Dec. 3, 1913.

A gamekeeper, while in the discharge of his duties, was attacked by poachers and injured. It was held that this was a personal injury by accident. Anderson v. Balfour (1910), 44 Irish L. T. 168; 3 B. W. C. C. 588.

In Massachusetts it has been held that an assault by a drunken co-employé, "who was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employés, all of which was known to the superintendcnt" of the employer, was an injury arising out of and in the course of the claimant's employment when the assault was committed while the claimant was working at his regular duties. McNichol v. Patterson, Wilde & Co. and Employers'

Assaults. Injuries caused by third persons

Liability Assur. Corp. Lim., 215 Mass. 000; 102 N. E. Rep. 697. The Massachusetts Act does not contain the word "accident" so it was unnecessary to determine whether or not it was an "accidental" injury.

The Massachusetts Industrial Accident Board has held that a bartender, who was stabbed by an irate customer, because of the bartender's refusal to serve him with any more drinks, was entitled to compensation. (The decision is not reported.)

An injury to an engine driver in being hit by a stone thrown by boys from an overhead bridge is an accident arising out of the employment. Challis v. London & South Western Ry. Co. (1905), 7 W. C. C. 23.

A recent newspaper report states that the Washington Commission awarded compensation to an employé who was shot in the eye by a boy with an air gun.

An employé while at work as a journeyman carpenter was killed by the fall of a bar of metal from an upper story, caused by a workman of an independent contractor on the same building, and it was held that the death arose out of and in the course of the employment within the meaning of the New Jersey Workmen's Compensation Act. Bryant v. Fissell, 000 N. J. Law 000; 86 Atl. Rep. 458.

A workman was employed to assist in loading and unloading wagons and also to assist in and about the care of the wagons. He was requested by his employer to grease a wheel of one of the wagons. While complying with this request and standing in front of the employer's store the wagon on which he was engaged was struck by a truck driven by the employé of a third person, and the employé received injuries which disabled him for ten weeks. Subsequently he made a claim against the employer owning the truck and that claim was settled. He then made a claim against his immediate employer for compensation. It was held that the injury arose out of the employment and also that the settlement with a third person did not bar the

Assaults. Injuries caused by third persons

claim for compensation. Perlsburg v. Muller, Essex Common Pleas, 35 N. J. Law J. 202.

The fact that an injury is caused by a fellow workman who has violated the Factory Act, and upon whom a fine has been inflicted because of such violation, is no reason for denying compensation to the employé who has been injured. Gibson v. Dunkerley Brothers (1910), 3 B. W. C. C. 345.

An employé who, without negligence or misconduct on his part, is struck by his foreman in a fit of anger, and had his arm broken, is injured in the course of his employment. Re Cornelius Flemmings, Op. Sol. Dep. C. & L., p. 187. In the last mentioned case it was pointed out that under the English act which requires that the injury must arise out of and in the course of the employment, assault of this kind would not be covered, but the Solicitor distinguished the English statute from the Federal Compensation Act, stating that the latter injury shall be caused "in the course of the employment" and that it need not necessarily "arise out of" the employment.

A foreman whose duty it was to enforce discipline was injured while going to stop a fight between two of his men and it was held that the injury occurred in the course of the employment and he was entitled to compensation. Re William Wharton, Op. Sol. Dep. C. & L., p. 250.

A shovel engineer and a negro brakeman became involved in an altercation, and the negro attacked the engineer with an iron bar and finally struck him on the head. The claimant seeing the engineer's life in danger, got down from the shovel to defend him and when he struck the negro in the teeth with his fist the back of his hand was badly bruised and lacerated and shortly thereafter became infected. It was held that no service of the master was being performed and it might be said that for the time being the relation of master and servant had been severed; that the claimant had got out of the scope of his employment in taking part in the fight and he

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Assaults. Injuries caused by third persons

assumed the risks incidental thereto and therefore compensation was denied. Re G. M. Armstead, Op. Sol. Dep. C. & L., p. 240.

A workman who is injured as the result of an encounter with another workman, following a quarrel, is not entitled to compensation, as the injury does not arise out of and in the course of the employment. Gorman v. Fidelity & Casualty Co., Mass. Indus. Acc. Bd.

One employé for no apparent reason pushed another against a moving rope. The latter involuntarily swung up one hand in which he held a hammer, to prevent falling, and hit the workman, who had shoved him, over the eye and injured him so badly that he lost the sight of the eye. Compensation was refused on the ground that the injury did not arise out of the employment. Shaw v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81.

A workman was struck in the eye by a piece of iron maliciously thrown by another workman at a third employé, and it was held that the accident did not arise out of the employment. Armitage v. Lancashire & Yorkshire Ry. Co. (1902), 86 L. T. 883; 4 W. C. C. 5.

One of two boys was injured in avoiding a handful of rubbish which was thrown at him by another boy, and it was held that the accident did not arise out of the employment. William Baird Co. v. Burley (1908), 45 Scotch L. R. 416; 1 B. W. C. C. 7.

Where a customer in a hotel went into the kitchen, where he had no business to be and made a rush at the cook, who, in trying to avoid him, put her arm through a glass door and was seriously hurt, it was held that this was not an accident to the cook arising out of the employment. Murphy v. Berwick (1909), 43 Irish L. T. 126; 2 B. W. C. C. 103.

Strikebreakers who are employed during a strike, and who are assaulted by striking workmen and injured are not entitled to compensation, as this is not an accident within the meaning of the compensation act, nor does the injury