These figures exclude a very important item of expense that is universally included in mercantile cost accounting-the return on the investment. A manufacturer, establishing a new enterprise, not only expects a fair interest return on his invested capital, but if he has an up-to-date system of keeping his books will consider as having been added to that capital not only the cost of the plant and its equipment, but the lost interest on his funds duriing the six months or year during which his plant was in process of construction, and will add the difference between the fair return on his investment and the actual return during the two to five years during which his enterprise is getting started, and is not earning a fair interest on the investment. After the enterprise is once established, the manufacturer will expect more than a bare interest return on the invested capital, for he will expect compensation for the risk he took of losing part or all his principal, for he is not unmindful of the fact that a large percentage of such enterprises fail.

A lawyer, too, has a large capital invested in his business. On the expensive equipment of law books and office appliances, which depreciate rapidly and which have little value except to a going concern, he should earn, without labor on his part, the customary interest return on the investment plus the annual depreciation in his principal by reason of use and obsolescence. Besides this tangible capital, the lawyer has invested the direct and indirect cost of his education, which is just as much invested capital as is that placed in the factory by the manufacturer. The direct cost of the education is the tuition charges, board, clothing, railway fares and expense of books. The indirect cost should include the salary lost. during the years in college (less the cost of board and clothing which has already been charged). and also the difference between the usual salary commanded by young men and that made by the lawyer during the early years of his practice, with interest on both direct and indirect cost of time when

the lawyer's income becomes sufficient to pay a return on his investment, and pay him an adequate salary for each day's labor. On such a basis, the average lawyer will find that his capital investment is much larger than he suspects. Save for the special study in acquiring an education, the lawyer could retain this capital for investment at current rate of return and, without labor on his part, be receiving the customary interest return. It is but fair for him to earn such a return on the investment in his education and office plant, in addition to compensation for his daily services as a trained and skilled professional workman. In a rough and ready way, lawyers have given consideration to these matters in fixing their fees, but no harm and much good come from careful scrutiny and analysis of every item of expense and investment connected with the practice of our profession.

can

Many lawyers have been thinking of their office problems along the general lines of this paper, but too often their discoveries remain hidden in their own offices. The time is now ripe for the manifestation of the co-operative spirit shown by the candy manufacturer heretofore alluded to. Just how these hidden short cuts and efficiency methods are to be collected, and their relative merits made available to the profession, is a problem large enough for the American Bar Association, though not necessarily too large for a State Association. In the matter of office equipment and filing devices, every lawyer has no doubt purchased and then discarded perfectly good equipment that was unsuited to his requirements. Had he been able to refer to the report of an expert, employed by a State or the American Bar Association, explaining the equipment best suited to various types of law offices, he could have avoided many mistakes. In the matter of accounting and labor-saving forms, the report of an expert in such matters would be of even greater value.

Organizations in the mercantile world not larger than our own have employed experts

CHASE, J. This is an appeal by an employee from an order of the Appellate Division, reversing, by a divided court, a unanimous award for compensation made by the State Industrial Commission and dismissing his claim under the Workmen's Compensation Law.

From the finding of the commission it appears:

That the claimant was employed by the Metal Package Corporation, a manufacturer of tin boxes. The claimant was employed as an oiler of machinery at the plant of his employer. On June 11, 1919, he "was working for his employer at his employer's plant, and while engaged in the regular course of his employment oiling machinery, a seaming machine was running defectively because a superabundance of oil had been supplied to it, and the foreman of said plant * sent for claimant and escorted him to said machine, and indicated that the machine was not operating properly because too much oil had been supplied, and he told the claimant that he, the claimant, had supplied the oil and was responsible for the machine's defective operation.

and left eyelid and the cornea of his left eye, and as a result claimant suffered a total loss of useful vision of the left eye."

The Commission also found that the injuries sustained by the claimant were accidental injuries and arose out of and in the course of his employment. The decision of the Commission is final on all questions of fact. Workmen's Compensation Law (Consol. Laws, c. 67) § 20; Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. The decision of the Appellate Division is to the effect that the findings do not sustain the award. It therefore dismissed the claim for compensation. The question for our determination is whether upon the findings the claimant did in fact receive an "accidental" injury "arising out of and in the course of employment." Workmen's Compensation Law, § 3.

The claimant's right to the award upon the findings of the Commission is directly sustained by the decision of this court in Matter of Heitz v. Ruppert, supra. In that case, as stated in the opinion therein:

The claimant was a driver for a corporation engaged in the business of carrying on a brewery. "He brought his horses into the stable, where Guth, a fellow workman, and he unharnessed the horses and proceeded to wash them off with the hose. Claimant told Guth he was using too much water on the horses, and Guth then intentionally sprinkled some water on claimant. Shortly after claimant, having briefly left the place where the horses were being washed, was returning to his work of cleaning the horses when he met Guth. As they passed claimant touched Guth on the Guth slapped claimant on the shoulder, and as shoulder, saying, 'George, don't do that again.' claimant turned around Guth's finger stuck in claimant's left eye, causing injuries by reason of which it was necessary to remove the eye."

The court said:

"That the injury was accidental within the meaning of the statute seems clear. It was a sudden and unlooked-for misfortune, and the purpose of the act is to insure the workman at the expense of the employer against personal injuries not expected or designed by the workman himself, provided such injuries arise out of and in the course of employment." 218 N Y. 151, 112 N. E. 751 (L. R. A. 1917A, 344.) The court further said:

"It was an obligation of claimant's employment to take care of the horses which he drove and to see that they were not injured by injudicious wetting or otherwise by his fellow workmen, that in course of their employment -while the two men were at work-a quarrel or argument over the wetting of the horses arose and personal injury grew out of the physical contact resulting from the quarrel, and that therefore the accident (a) arose out of and (b) in the course of employment." 218 N. Y. 153, 112 N. E. 751 (L. R. A. 1917A, 344). 344.)

The court further said:

"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." 218 N. Y. 153, 112 N. E. 751 (L. R. A. 1917A, 344.)

The injury to the claimant's eye was not designed, intended, or expected. It was an unlooked-for and untoward event and an accident within the meaning of the act. The assault by the foreman arose out of and in the course of the claimant's employment, as did the assault of Guth that followed the words of his fellow workman, Heitz, which were undoubtedly accepted by Guth as in the nature of a challenge. In the case now before us the controversy was in the factory during working hours and about the employer's work and the manner of doing it. The assailant was the foreman of the factory, and concededly acting as such at least up to the moment of the assault. When he sent for the claimant and escorted him to the machine that was said not to have been operating properly, the claimant was and continued to be engaged in the employer's business, and the foreman, when he charged the claimant with responsibility for the machine's defective operation, was also engaged in what seems to have been his duty as the person in control for the employer of the employees and the work in the factory. If the foreman was mistaken in his accusation against the claimant, the claimant could properly have denied that he was responsible for the machine's defective operation. Each seems, while performing his work and in discussing the employer's business, to have been equally hasty in becoming angry toward the other.

The claimant's use of an irritating word in making denial did not, however, justify either in law or in fact an assault upon him by the foreman. The foreman's duty as such to exercise reasonable discipline over the employees of the factory made possible a lack of discretion in performing such duty. The assault by the foreman was incidental to his employment as such. It grew out of his performance of his duty as foreman for the employer. It cannot be said as a matter of law or fact that the foreman, who up to the moment of the assault was properly engaged in the performance of his duty to his employer at that moment aban

doned his duty and indulged in the assault as an individual act.

The employer should be responsible for an excitable and violent foreman in the prosecution of his duties as such, at least until there is sufficient interruption in the performance of such duties as to justify the conclusion that the foreman had abandoned his employment and that the assault was an independent and individual act as distinguished from acts within the terms of his employment. There was no intervening time between the acts and words of the assailant and the assailed and the injury in this case.

The conclusion here is less subject to a claim that the assault was a personal act than in the Heitz Case, where the assault did not occur until an intervening period of time after the first difference between the fellow employees. It arose in that case upon the return of Heitz and his statement to Guth in the nature of a challenge. There was no purpose by claimant in this case to bring about an assault nor a willful intention to bring about the injury within the meaning of section 10 of the Workmen's Compensation Law. The award made in this case upon the findings of the Industrial Commission is also sustained by the conclusion of this court in Matter of Carbone v. Loft, 219 N. Y. 579, 114 N. E. 1062; Matter of Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192, 128 N. E. 126; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711; Swift & Co. v. Industrial Comm., 287 Ill. 564, 122 N. E. 796; Pekin Cooperage Co. v. Industrial Comm., 285 Ill. 31, 120 N. E. 530; McIntyre v. Rodger & Co., 41 Scot. L. Rep. 107..

The order of the Appellate Division should be reversed, and the award of the Industrial Commission affirmed, with costs in the Appellate Division and in this court.

NOTE-Meaning of "Wilful Misconduct" as Used in the Workmen's Compensation Statutes.Most of the Workmen's Compensation statutes in the United States provide that wilful misconduct on the part of an employee resulting in his injury will bar recovery. In the English case of Johnson v. Marshall & Sons, (1906) A. C. 409, 75 L. J. K. B. 868, the court said, in relation to the meaning of the phrase, “wilfull misconduct": "It was wilful in the sense that the matter presumably seemed of his own accord, but the word 'wilful,' I think, imports that the man's conduct was deliberate, not merely a thoughtless act on the spur of the moment."

"The act of going into an adjoining apartment falls far short of showing wilful misconduct. It evidences a mistake, and might afford proof of negligence on the part of the employee, but negligence is not involved in the question presented

for our determination." In Re Ayers, Ind. App., 118 N. E. 386.

Where a reporter was riding on a trolley car to deliver a story to his employer, put his head out the window carelessly, or for his own ends, injuries sustained while so doing would have resulted from wilful misconduct; but such would not have been the case if his object was to see an aeropiane for the purpose of making a reduty. port to his employer in the line of his Kinsman v. Hartford Courant Co., Conn., 108 Atl. 562.

The use of a freight elevator by a female employee in leaving her place of work to go home, was not "wilful" within the meaning of the Maine Compensation Act. Dulac v. Dumbarton Woolen Mills, Me., 112 Atl. 710.

One employed in a quarry who neglected to leave when the whistle blew for quitting time, and who knew that blasts were fired about ten minutes after quitting time, and who was delayed by boxes which he was carrying, and one of his children who came to meet him, and by stopping a moment to speak to another eniployee, and who was killed by being struck by a stone from a blast, was not guilty of serious and wilful misconduct, although his negligence in leaving the place was a violation of the rule of the employer. Merlino v. Connecticut Quarries Co., Conn., 104 Atl. 396.

An employee of a Car Company who was crushed between cars which were standing at intervals on a track, and who had been warned that the cars were about to be moved, and who delayed in leaving to talk to another employee, was held not to be guilty of wilful misconduct. Baltimore Car Foundry Company v. Ruzicka, Md., 104 Atl. 167.

An employee who went to the rescue of a fellow-employee, who was being overcome by gas in a vinegar vat was not guilty of wilful misconduct, although he did so against the protests and warnings of his foreman and several fellow-employees. General Accident F. & L. Corp. v. Evans, Tex. Civ. App., 201 S. W. 705.

Where an employee was injured by acid while he was violating a rule of the employer requiring him to wear glasses, but the acid was still on his back and none was gotten in his eyes until it was attempted to pull his shirt over his head. The Court held that failure to wear glasses was not a contributory cause of the injury and he was allowed to recover. Great Western Electro Chemical Company v. Industrial Acc. Comm., Cal. App., 170 Pac. 165.

See also in regard to failure to use proper Haskell guard on appliances on machine, & Barker Car Company v. Kay, Ind. App., 119 N. E. 811 Bayshore Laundry Company v. Industrial Acc. Comm., Cal. App., 172 Pac., 1128.

ITEMS OF PROFESSIONAL

INTEREST.

THE LEGAL PROFESSION IN SCOTLAND

The welcome recently given by the Scots Bar to the leaders of Bench and Bar in England calls attention once more to the curiously dif

ferent organization of the two Bars, English and Scots, which has grown up in the course of history. The English Bar has resulted from the permission given by the King's Bench, in the Middle Ages, to the Sergeants and Barristers-of-Law, in the numerous Inns of Court which then existed, to practice before them. The Inns of Court, in those days, like the colleges of Oxford and Cambridge, were hostels where law students lodged while engaged in the study of their profession. Such students were then called apprentices, and were one and all articled to masters, whether barristers or attorneys. The rank of barrister was a degree like that of bachelor or master at Oxford. The sergeants corresponded to the later Benchers. How different the Scots Bar. To begin with, in Scotland, until the reign of James V, no Supreme Court existed. The sheriffs dispensed justice in the burghs and the feudal lords in the counties. Professional lawyers of any kind were quite unknown. It was James V who changed all this. In 1552 he set up the Court of Session (modelled on the French Parliament of Paris), and the High Court of Justice; these consisted of fifteen "Lords of Session" (since reduced to thirteen) and were the supreme civil and criminal courts respectively. Each Lord of Session is also a "Senator of the College of Justice," and as such goes on circuit to try the "Pleas of the Crown," i. e., murder, arson, robbery, rape. Lesser criminal offenses, whether indictable or summary, are tried by the Sheriff in the Sheriff Court and the Sheriff Police Court respectively; these correspond to the English Quarter and Petty Sessions. The Lord of Session was at first possessed of a seat in the Scots Parliament among the peers, but this right was not retained in later days. Once the Court of Session was formed, the Lords of Session promptly proceeded to admit two classes of lawyers to practise before them, namely, Advocates and writers of the Signet, who corresponded to the French "Avocats" and "Avouees." To this day the Court of Session consists of the Lord President, Lord Advocate, Lords Ordinary, Advocates, and Writers of the Signet. The Sheriffs copied the fashion of admitting privileged pleaders and formed county corporations of "writers" or "procurators," the urban and rural lawyers respectively, who have since been given the statutory name of "law-agents" and correspond to the English solicitors.

For some centuries after its foundation by James V, the Scots Court of Session was the great Institution of the country. The Scots Parliament seldom met and was never really rowerful except in the reign of Queen Mary.

the

no

The Lords of Session formed great territorial families, known as the "Noblesse du Robe," as in France, and they gradually confined membership of the Bar to scions of their families. An outsider would be admitted only by special grace. It was a great feather in Sir Walter Scott's cap when he, not a member of the privileged noblesse du robe, but the son of a Writer of the Signet, found his way to the Bar. It was not until 1832, indeed, that this exclusive privilege was done away with in Scotland. The modern advocate has to take, first an Arts and then a Law degree at a Scots University; this means six or seven years' study. Then he spends a "year of idleness," when he must follow no lucrative occupation; the old practice was for the "Intrant," as he was called, to spend his "year of idleness" at Leyden University in Holland, studying the Roman-Dutch system of law on which that of Scotland is modelled. But this practice longer is universal; many intrants spend this year reading in chambers. At the end of the year, the intrant has to write a thesis in Latin on a "Title of the Pandects," and defend it before three advocates appointed by the faculty. He is then called, as in England. But the fees are much heavier, and increase with age. At 25 they are about £450, and the increase is about £25 per year thereafter. The reason is that the fee includes a single payment premium for insurance in favor of the advocate's "widow," and naturally the amount of the premium is larger as the intrant gets older. For this reason only young men seek admission to the Scots Bar. Beneath the Bar come two privileged bodies of lawyers who have the exclusive right of practice in the Court of Session, and one of whom has to sign every writ issued out of the court, namely the "Writers of the Signet" and the "Solicitors of the Supreme Court." Lastly come the Law-Agents, Writers or Procurators, who correspond to our solicitors. In Scotland a Writer or Procurator may become a Sheriff, and very often does so. He may even become a Lord of Session, but there have been no appointments in modern times outside the Bar. In Scotland it is not nearly so easy to change from Barrister to Solicitor, or vice versa, as in England; in fact the process of translation takes some years. The Scots Bar, curiously enough, elects its own head, the Dean of Faculty, thus following the continental practice. Generally speaking, it may be said, that the separation

into three

branches, instead of two, and the general "apartness" of those three branches makes the Scots legal profession more archaic than the English Solicitor's Journal (London.)

REPORT OF THE MEETING OF THE NORTH DAKOTA BAR ASSOCIATION.

The annual meeting of the North Dakota Bar Association was held July 7th and 8th, 1921, at Grand Forks.

The annual address, given by Sir James Aikins, Lieutenant-Governor of Manitoba, was very interesting. His subject was: "The Development of the Red River Valley." Mr. E. A. Prendergast, of Minneapolis, made an address on "The Control of Public Utilities."

A recent act of the legislature of North Dakota permits the Association to organize as a state institution. No dues are required from members of the Association, but each practicing attorney pays to the state treasurer a license fee of $15 per annum, and from this fund an appropriation is made to cover the expenses of the Association. By the act of the legislature all practicing lawyers who have paid the license fee become members of the State Bar Association, and at this meeting of the Association a new constitution and bylaws were adopted to conform to the new law.

In North Dakota the admission to the bar and discipline of members of the bar are under control of a board appointed by the governor. At this meeting of the Association there was a discussion of a proposed bill to give this control to the Bar Association, which hopes to have such an act passed within the next year or so. Hon. Tracy R. Bangs of Grand Forks was elected as president, and Mr. John E. Greene of Minot, was re-elected as secretary and treas

urer.

CORRESPONDENCE.

EXTRA LATERAL RIGHTS OF MINING CLAIMANTS

Editor Central Law Journal:

In your issue of August 12, 1921, page 96, in interpreting a decision of the U. S. Supreme Court in the case of Silver King Coalition Mines Co. v. Conkling, 41 Sup. Ct. 426, you make the following statement:

"When a prospector discovers a vein of ore on public lands, he is entitled to lay out a claim on the surface running parallel with the vein 150 feet long and 600 feet wide. If the apex of the vein is on the claim, the claimant may follow the dip of the discovery vein beyond the end lines but is not entitled to ore beyond the side lines."

Evidently the figures 150 referring to the length of the claim is a typographical error, as it should be 1500 feet.