
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Millie De Filippis, Claimant, Respondent, for Compensation to Herself under the Workmen’s Compensation Law, v. Charles Falkenberg, Employer, and Commercial Casualty Insurance Company, Insurance Carrier, Appellants.
    Third Department,
    November 10, 1915.
    Workmen’s Compensation Law — injury by sportive act of fellow-servant — injury not arising out of employment — statute construed — foreign decisions.
    Where an employee, engaged in the manufacture of shirts, etc., having repaired to the toilet, was struck in the eye with scissors which were thrust through a partition from an adjoining toilet by a fellow-servant as a practical joke, the injury, although accidental, cannot be said to have arisen ‘‘out of” the employment within the meaning of the Workmen’s Compensation Law, and the employee is not entitled to an award.
    
      It seems, that, as the Workmen’s Compensation Law is modeled upon the English Act, decisions under that act may be considered by our courts.
    Kellogg and Woodward, JJ., dissented.
    Appeal by Charles Falkenberg and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 30th day of April, 1915.
    
      Otto D. Parker [Henry Siegrist of counsel], for the appellants.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondent.
    
      Jeremiah F. Connor, counsel for the Workmen’s Compensation Commission.
   Lyon, J.:

The questions presented by this appeal are whether the injuries sustained by the claimant were accidental injuries, and if so, whether they were injuries “arising out of’’her employment, within the intent of the Workmen’s Compensation Law (Consol. Laws, chap. G7 [Laws of 1914, chap. 41], § 10).

The claimant, a girl fifteen years of age, was employed as an operator of a button-hole machine in the manufacture of shirts and pajamas. Connected with the factory were two adjoining-toilet rooms having a partition between them. The Commission has found, upon somewhat contradictory evidence, that “At about two o’clock in the afternoon, Millie De Filippis went to the toilet, and she was struck on the arm by something, and looked through a crack to see where the article had come from, when a girl in the adjoining toilet thrust some scissors in the crack into her eye, causing a loss of 75 per cent of the vision of right eye, and the consequent loss of the use of the eye * * *. The injuries to Millie De Filippis were accidental injuries, and arose out of and in the course of her employment * * *."

I think the occurrence was properly held to have been accidental. (Trim Joint District School v. Kelly, 7 B. W. C. C. 274; 30 T. L. Rep. 452.) The event was unlooked for, and not designed or expected by either girl, and within the popular and ordinary use of the word was an accident. I think, also, that the injury arose in the course of her employment. But can the injury be said to have arisen “ out of ” the employment of the claimant ? Undoubtedly, while accepting the conveniences of the toilet, the claimant was still in the employ of the master. (Houston & Texas C. R. Co. v. Turner, 99 Tex. 547; Elliott v. Rex, 6 W. C. C. 27; Zabriskie v. Erie R. Co., 85 N. J. L. 157.) Her being there was reasonably incidental to and within the scope of her employment. It was in the' interest of her employer as well as of herself that she should be able to continue her work without physical inconvenience.

Had an accidental injury resulted from the condition of the room, or of the toilet appliances, the injury might properly have been held to have arisen out of the employment. In fact, had there been a nail or a scissors blade imbedded in the wood and projecting from the side of the partition, which accidentally injured her eye as she turned to see what touched her, I think the injury would have been incidental to the use of the room for toilet purposes, and claimant entitled to an award. However, the injury resulted solely from the sportive act of a coworker who was in no way representing the master, and which act in no way grew out of or was connected with the employment. A test spoken of in the case of Plumb v. Cobden Flour Mills Co., Ltd. (7 B. W. C. C. 1), as a sound and convenient test in determining whether the injury arose out of the employment is whether it is in the scope or sphere of the employment. The injury in the case at bar was not a peril of the service, nor was it reasonably incidental to the employment. It was not an assault which had its origin in the nature of the employment, nor was in any way whatever connected with the master’s work. In Matter of McNicol (215 Mass. 491) the court said: “It [an injury] 'arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ' out of ’ the employment.” In the case at bar there was no causal connection between the work and the injury resulting from the independent affirmative act of a coworker. The following are some of the cases bearing upon the subject:

Where an employee lost the sight of one eye when a fellow-employee came from another room, pointed a toy camera at him, and before he could protect himself, discharged the spring projectile, which struck him in the eye; held, that the accident did not arise out of the employment and that the claim for compensation should he denied. (Fishering v. Daly Bros. & Royal Indemnity Co., California Industrial Commission, June 16, 1915.)

A maliciously threw a piece of iron at B, but struck the eye of C, who was at work; held, that the accident to C did not arise out of and in the course of his employment. (Armitage v. Lancashire & Yorkshire Ry. Co., 4 W. C. C. 5.)

Some workmen as a practical joke put a hook of their employer’s crane which they were working, through the neck cloth of a fellow-workman, who was at the time engaged in his work on his employer’s wharf, and commenced to draw him up through the warehouse. The man held the chains with his hands as long as he could, but eventually had to let go his hold and fell a considerable distance and was seriously injured; held, that the injury did not arise out of the employment. (Fitzgerald v. Clarke & Son, 1 B. W. C. C. 197; L. R [1908] 2 K. B. 796; 99 L. T. Rep. 101.)

Several hoys were employed picking stones and bats out. of coal running past on a belt. It was their duty to throw these into a cart nearby. One boy maliciously threw a stone at another and so injured him that his eye had to be removed. There was a notice posted up prohibiting the throwing of stones, but no direct evidence that the boys were in the habit of throwing stones at each other; held, the accident did not arise out of the employment. (Clayton v. Hardwick Colliery Co., Ltd., 7 B. W. C. C. 643.)

A domestic servant while engaged in the performance of her duties was struck in the eye by a child’s ball playfully thrown at her by a fellow-servant — the child’s nurse — with the result that she almost completely lost the sight of the eye; held, that the accident was not one arising out of the employment within the meaning of the English Workmen’s Compensation Act of 1906 (6 Edw. 7, chap. 58, § 1, subd. 1). (Wilson v. Laing, 2 B. W. C. C. 118; 46 S. L. R. 843.)

Claimant having just washed her hands upon the completion of certain work, was struck and injured by a ball of burlap thrown in a spirit of play by one of her coemployees at another; held, that the injury did not arise out of and in the course of the employment. (Howley v. American Mut. Lia. Ins. Co., Mass. Ind. Acc. Bd. Case no. 1032; Nat. Comp. Journ. [Nov. 1914], vol. 1, no. 11, p. 20.)

A workman for no apparent reason deliberately assaulted a fellow-workman, who, in trying to prevent himself falling over a moving rope, swung up his hand which was holding a hammer, and injured the other workmen’s eye; held, that the accident did not arise out of and in the course of the employment. (Shaw v. Wigan Coal & Iron Co., Ltd., 3 B.W. C. C. 81.)

In the following cases also it was held that the injury did not arise out of the employment:

A boy sent to clean a machine at rest was larking with another boy, and accidentally started the machine thereby injuring himself. (Cole v. Evans, 4 B. W. C. C. 138.)

A turner while larking with another turner was knocked into a lathe and injured. (Wrigley v. Nasmyth, Wilson & Co., W. C. & Insur. Rep. [1913], 145.)

Claimant while employed at his bench was struck on the knee by a block thrown by some person to him unknown, whether in jest or malice he could not say. (Matter of Boelema, Mich. Ind. Acc. Board, 4 N. C. C. A. 855.)

However, it was held in Hulley v. Moosbrugger (Supreme Court of New Jersey, Feb. 1915, 87 N. J. L. 103; 8 N. C. C. A. 283; 93 Atl. Rep. 79) that where a plumber, while passing to a bin to get fittings for a job, dodged the attack of the arm of a fellow-workman, thrown out in a spirit of fun either to knock off his hat or to strike him and in doing so slipped and fell on the descending concrete floor, whereby he received injuries from which he died, the accident arose out of his employment within the New Jersey Workmen’s Compensation Act. (See New Jersey Laws of 1911, chap. 95, as amd.) It is to be observed, however, that in that case the cause of the accident was two-fold, and that it was very much owing to the descending concrete floor, and that to such extent a causal connection existed between the conditions under which the work was required to be performed and the resulting injury. It is also to be observed that the New Jersey Workmen’s Compensation Act does not limit the liability of the employer to certain specified hazardous employments as the New York act does, but that the New Jersey act covers all employments, exclusive of casual employments.

As suggested in the opinion in Matter of Newman v. Newman (169 App. Div. 746), decided at this term, the words “arising out of and in the course of his employment,” in section 10 of our statute, were taken from the English Workmen’s Compensation Act of 1906 (6 Edw. 7, chap. 58, § 1, subd. 1), with which the members of the Wainwright Commission were familiar, as they doubtless were also with the decisions under that act; hence due consideration should be given to such decisions in passing upon the construction to be given to the language in question. (Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577, 581; 36 Cyc. 1154-1157.)

While the injuries suffered by the claimant must necessarily excite the sympathies of the court, the interpretation of the statute above given seems to be the necessary one, even giving the language as broad a construction as can fairly be given it. If the act be deemed unjust or unsatisfactory the remedy is with the Legislature.

The award made by the Commission must be reversed.

All concurred, except Kellogg and Woodward, JJ., dissenting.

Award reversed and claim dismissed. 
      
      
        Hulley v. Moosbrugger was reversed November 15, 1915 (95 Atl. Rep. 1007). — [Rep.
     