not a danger which is incidental to employment in a coal mine, but is an act which is entirely outside the scope of the employment." But the disobedience by fellow workmen is as much one of the risks of a man's employment as a defect in the mechanical appliances. That the injury was caused by an independent criminal agency does not render it noncompensable where the danger of injury by such means was an incident of the performance of the work, as well as of the time and place of the performance. Injuries received in protecting the employer's property or interests against law violators are compensable where the injured employé's acts are within the scope of his employment, as where one in charge of his employer's business or property and in the discharge of his duties is injured by an unruly employé, trespasser, robber,1o or passen

5 Baird & Co., Ltd., v. Burley (1909) 1 B. W. C. C. 7, Ct. of Sess.

• Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927, citing Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Archibald v. Ott (W. Va.) 87 S. E. 791.

7 This appears from cases heretofore noticed. An injury to a railroad engine driver, occasioned by a stone thrown from a bridge by a boy while the engine was passing under it, was held to be an accident arising out of the employment (Challis v. London & S. W. Ry. Co., [1905] 2 K. B. 154), because such a danger is a matter of common knowledge and is accordingly deemed to have been within the contemplation of both master and servant. Murder of a paymaster incident to his robbery is an accident arising out of the employment (Nisbet v. Rayne and Burn, [1910] 2 K. B. 689), because the habitual carrying of large sums of money in the course of the employment and as an act of service therein is an exposure to the risk of an attack by robbers. A premeditated fatal assault on a schoolmaster by bad and unruly pupils is an accident arising out of the employment (Trim Joint District School Board v. Kelly [1914] App. Cas. 667).

8 The danger of being turned upon and beaten by an unruly employé in the event of being reproved or discharged for disobedience is a risk which

The injury arose out of the employment where a mill superintendent was shot and killed by a trespasser whom he ordered out, and it was not only a part of his general duties to order off trespassers, but he had special instructions as to this particular trespasser (In re Reithel, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304, and where a gamekeeper on duty was attacked by poachers and injured (Anderson v. Balfour [1910] 3 B. W. C. C. 588, C. A.). 10 See note 10 on following page.

ger, or by a customer on whom he is waiting, and where a peace officer is injured in attempting to make an arrest or prevent a dis

every foreman takes, and arises out of, and is incidental to, his employment. Assaults arising out of the exercise of his authority by a foreman are to be distinguished from ordinary fights between two workmen upon a job. Rudder v. Ocean Shore R. R. Co., 1 Cal. I. A. C. Dec. 209. Where an assistant foreman was assaulted by two workmen, whom he had just reprimanded for not doing their work properly, the accident arose out of the employment. Yume v. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353 (affirmed in 169 App. Div. 905, 153 N. Y. Supp. 1151).

But where a teamster, whose mules broke the tongue of his wagon and put him in a frenzy of anger, unexpectedly beat the foreman, who was standing near, for not having rendered certain assistance, such unprovoked assault did not constitute a compensable accident, there having been no instructions given by the foreman, or attempt to discharge or discipline the teamster. Petersen v. Valley Pipe Line Co., 2 Cal. I. A. C. Dec. 606. Nor was the accident compensable where a foreman was injured by a former employé, and it did not appear that the foreman received the injury in the necessary performance of his duties, or that the unprovoked assault was even accidental as to the former employé. Halm v. Marshall, 2 Cal. I. A. C. Dec. 605.

10 The danger of being held up by a highwayman is a risk of the occupation which every street car conductor or motorman has to take, and may properly be held to arise out of the employment. Morrison v. Los Angeles Ry. Corp., 2 Cal. I. A. C. Dec. 18. Where a bartender is shot on his refusal to throw up his hands at the order of hold-up men attempting to rob a saloon at midnight, and while he is trying to reach the adjoining room to get a revolver, the accident arises out of the employment. Henning v. Henning, 2 Cal. I. A. C. Dec. 733. Where a night watchman in a paper mill was required in his rounds to visit places accessible and particularly inviting for an attack upon him, and the risk of attack was a complement of his employment, he being employed for that particular purpose, an assault for the purpose of robbery by a coemployé was an accident arising out of his employment. Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264.

11 Under the Washington Act, employés who are injured by third persons while actually engaged in the performance of their duties are entitled to compensation for disabilities resulting, as, for example, street car conductors, assaulted by disorderly passengers for insisting on obedience of the company's rules. (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6.

12 The employé had been instructed to decline to supply a certain customer with merchandise until he had paid a bill long overdue. This customer, after having paid his bill and received the goods ordered, later had occasion to pass

turbance.13 On the other hand, an injury is not compensable where the risk thereof was not involved in the employé's duties.1

the employé, and, being in an angry mood because of the latter's refusal to serve him in the first instance, called the employé a name and struck at him as he passed. The employé parried the blow and the customer laid hands on him, the employé meanwhile resisting, with the result that the latter received the personal injury which caused him to be totally incapacitated for work. The Committee of Arbitration came to the conclusion that the employé was subjected to a risk in the proper carrying out of his employer's orders through no contributory action or remark of his own. The Board affirmed the Committee's decision and held that the employé was entitled to compensation. O'Connor v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cases, 387 (decision of Com. of Arb., affirmed by Indus. Acc. Bd.).

Where the secretary and office manager of a company is shot by a customer, who has been sued by the company to collect an unpaid account, the assault being entirely unexpected and unprovoked, and occurring in the office of the company when the customer comes in and demands a receipt in full for the account, which has been paid, and while the secretary is making out the receipt, the accident arises out of the employment. Craycroft v. Craycroft-Herrold Brick Co., 2 Cal. I. A. C. Dec. 654.

13 Where a deputy marshal, in attempting to ascertain the cause of a disturbance and to induce the disturber to desist, is, without reason, shot by such disturber, the accident is peculiarly a risk of that employment, and compensable. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587. Where a city marshal is murdered by persons whom he is seeking to arrest as suspicious characters, his widow is entitled to a death benefit. Colson v. City of Burbank, 2 Cal. I. A. C. Dec. 127.

14 Petersen v. Valley Pipe Line Co., supra; Halm v. Marshall, supra.

The injury did not arise out of the employment where a workman, seeking to assist his employer, who had been beset by rowdies, was stabbed and fatally injured (Collins v. Collins [1907] 2 Ir. R. 104, C. A.); nor where an errand boy was assaulted by his employer, who had been in an asylum, and was subject to fits of melancholia (Blake v. Head [1912] 5 B. W. C. C. 303, C. A.); nor where the agent and collector of a brewery was murdered while making a delivery of beer, and it did not appear that the purpose of the attack was robbery, a risk connected with his employment, or that the employer had any reason to anticipate that the attack would be made (Schmoll v. Weisbrod & Hess Brewing Co. [N. J. Sup.] 97 Atl. 723).

In Devanzo v. Jarvis, 1 Conn. Comp. Dec. 435 (affirmed by superior court on appeal), where the claimant while at work was feloniously assaulted by two disreputable men, who had previously been his coemployés and who had been discharged, the attack being due to animosity cherished because claim

Where a night watchman is murdered by burglars whom he has surprised on the premises of his employer, his death is caused by an accident arising out of his employment.15 But the occurrence does not arise out of the employment where he is shot and killed by a fellow watchman temporarily insane, and the employer and all other persons were previously unaware of his tendency to insanity. Nor does the injury so arise where a night watchman, mistakenly believing that two officers are robbers, fires at them, and they believing him to be a robber, return the fire, injuring him, and it appears that his duties do not involve the risk of the injury received.17

Where the owner of a small store, also local agent for an express company is killed while defending his store from robbery, and it does not appear that the robbers were endeavoring specifically to steal the express company's property, but were merely looking for valuables, without regard to ownership or custody, the death does not arise out of the employment, and the express company is not liable.18

121.

Injury from horseplay or practical joking

Unless the workman is actually engaged at the particular time in the performance of some duty which contributes to the injury, an injury to a workman from skylarking or horseplay or practical joking, though it may arise in the course of, cannot be said to arise

ant had secured their discharge, it was held the injury did not arise out of the employment. In Loesser v. East Shore Amusement Co., 1 Conn. Comp. Dec. 449, it was held that where a bartender was injured about the face and eye by a glass thrown at him by the porter in the saloon, immediately following an altercation over a half-eaten sandwich of claimant, which the porter had thrown away, the injury did not arise out of the employment.

15 Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. 18 Allyn v. Fresno Brewing Co., 2 Cal. I. A. C. Dec. 784.

17 In re Harbroe, 223 Mass. 139, 111 N. E. 709.

18 Herrick v. Wells Fargo & Co., 2 Cal. I. A. C. Dec. 85.

out of, the employment, whether the injured person instigated the occurrence or took no part in it.10 It has been held, however, that

19

19 "If two workmen leave their work and begin to indulge in horseplay, they are not doing their master's work, but, on the contrary, are doing what is absolutely inconsistent with the carrying on of their master's work, and it cannot be said that anything which happens in consequence of such conduct arises out of the employment." (Eng. Act 1897) Lord Justice Clerk, in Mc

Intyre v. Rodger & Co. (1904) 6 F. 176.

If an employé is assaulted by a fellow workman, though in play, an injury so sustained does not arise out of the employment. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509.

An employé who is injured by a practical joke or by the horseplay of his fellow employés is not entitled to compensation. Such injury does not arise out of his employment, for the reason that it bears no relation to the duties he is required to perform. Koch v. Oakland Brewing & Malting Co., 1 Cal. I. A. C. Dec. 373.

An employer is not liable, under the Workmen's Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employé which was the result of horseplay or skylarking, so called, whether the injured or deceased party instigated the occurrence or took no part in it; for, while an accident, happening in such circumstances, may arise in the course of, it cannot be said to arise out of, the employment. Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203.

In Armitage v. L. & Y. Ry. Co., L. R. [1902] 2 King's Bench, 178, a boy of 16 years of age, engaged at work where he and other boys were employed, was pushed into a pit by another boy for a "lark." Becoming angry, he picked up a piece of iron and threw it at the boy who pushed him in; it missed him, and hit another boy in the eye, injuring him, for which he claimed compensation from his employer. The county court judge held that the accident was one which arose out of and in the course of the boy's employment, and awarded compensation. This judgment was reversed. Three opinions were delivered in the case. Collins, M. R., held that the findings of the county judge on questions of fact, if there be evidence to support them and he has not misdirected himself in point of law, are final. Among other things, he said, at page 181: "A boy, engaged in the same work as the respondent, in anger threw a piece of iron at another boy, which missed him and hit the respondent. This was a wrongful act entirely outside the scope of the employment. The statute does not provide an insurance for the workman against every accident happening to him while he is engaged in the employment of his master, but only against accidents arising out of and in the course of that employment. As a matter of law, it cannot be said that an accident caused to a workman while engaged in his work by a fellow workman's doing a wrongful act entirely outside the scope of his employment is an ac

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