
    LITTLE v. ATLAS DROP FORGE CO.
    Master and Servant — Workmen’s Compensation Act — Assault by Fellow Employee — Course oe Employment.
    Where the sole reason for an assault upon plaintiff by a fellow employee was resentment because of directions given him by plaintiff as to how work should be done, which it was his duty to give, the determination of the department of labor and industry that plaintiff’s injuries resulting therefrom arose out of and in the course of his employment, within the meaning of the workmen’s compensation act, was correct.
    On recovery for compensation under workmen’s compensation acts where workman suffers injury from assault “arising out of and in the course of” his employment, see notes In L. R. A. 1918E, 498; 15 A. L. R. 589; 21 A. L. R. 758.
    Certiorari to Department of Labor and Industry.
    Submitted January 25, 1923.
    (Docket No. 76.)
    Decided March 22, 1923.
    William Little presented his claim for compensation against the Atlas Drop Forge Company for an accidental injury in defendant’s employ. From an order awarding compensation, defendant and the Michigan Employers Casualty Company,- insurer, bring certiorari.
    Affirmed.
    
      Brown, Kelley & Mosier, for appellants.
    
      C. W.. & W. S. Foster, for appellee.
   McDonald, J.

This case is here for review on certiorari to the department of labor and industry. William Little was an employee of the Atlas Drop Forge Company of Lansing. His work was that of an operator of a drop forge hammer. A foreigner, one Tony Dombaski, was employed to carry steel axles to Little. On the 27th of April, 1922, he had occasion to give Dombaski some directions as to the placing of the material. This angered Dombaski, who replied with a vile epithet and threatened violence, but went away, returning in about 20 minutes. When he returned, Little was bent over working at the furnace. Dombaski threw a rod of steel at him, striking him in the head and producing very serious injuries. Since that time he has been unable to work. The board awarded him compensation. The defendants are here asking to have that award vacated. The only question involved is whether plaintiff’s injuries arose out of his employment.'

The claim of the defendants is stated by counsel in their brief as follows:

“Appellants’ position has been and is that this is not a case where compensation should be allowed; that it cannot be rationally and fairly said that the accidental injury arose out of the employment.”

The law applicable to the facts in this case is stated by Chief Justice Bird in Marshall v. Baker-Vawter Co., 206 Mich. 466. In that case the court lays down the test to be applied to cases where employees suffer injuries from assault while engaged in the employer’s business. After citing numerous authorities from this and other jurisdictions, the court said:

“An examination of these authorities does not disclose any material disagreement over the test which should be applied. Some of them are close cases— near the line, as is the present case. In all, or nearly •all of them, the test is applied, namely, whether the attack grew out of the employment — out of the work, or was one of personal vengeance.”

As illustrative of this rule the following language from Jacquemin v. Manufacturing Co., 92 Conn. 382 (103 Atl. 115, L. R. A. 1918E, 496), was quoted with approval.

“If one employee assaults another employee solely to gratify his feelings of anger or hatred, the injury results from the voluntary act of . the assailant, and cannot be said to arise either directly out of the employment or as an incident of it. But where the employee is assaulted while he is defending his employer or his employer’s property or his employer’s interests, or when the assault was incidental to some duty of his employment, the injuries he suffers in consequence of the assault will, as a rule, arise out of the employment. He will then be serving his employer’s ends and not his own.”

The facts as to the assault on Mr. Little are not in dispute. Dombaski was' employed in carrying steel axles to Little and piling them near his forge hammer according to length. The foreman had instructed Little to see that this work was properly done by Dombaski. When he undertook to do so the assault followed. There had been no previous quarrel nor other trouble between the men. Dombaski was quick tempered and quarrelsome. Apparently the sole reason for the assault was his resentment because of the directions which Little gave and which it was his duty to give. It grew out of the work which plaintiff was required to do in the course of his employment. No other reasonable inference can be drawn from the undisputed facts. On these facts the board was correct in its determination that the injuries to plaintiff arose out of and in the course of his employment.

The award is affirmed, with costs to the plaintiff.

Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.  