As a preliminary matter, the findings of fact made by the Trial Court being supported by the evidence are accepted as true. We will consider the legal questions involved in the order in which they have been discussed in the defendant's brief.
It is argued that Newell's death was not "by accident" within the meaning of R. L., c. 216, s. 2. The trend of the recent cases regard assaults by design as accidental. From the point of view of. the victim and in a popular sense (Moore v. Company, 88 N.H. 134, 138), Newell's death was sudden, unexpected and truly accidental. The majority of the cases, particularly those decided in the last three years, support this view. Horovitz, Modern Trends in Workmen's Compensation, 21 Ind. L.J. 473, 491-493 (1946); Duncan v. Perry Packing Co., 162 Kan. 79; Hagger v. Wortz Biscuit Co., 210 Ark. 318; Kaiser v. Reardon Co., 355 Mo. 157; Echols v. Company, 74 Ga. App. 18.
The next question is whether Newell's injury did not "arise out of" his employment as ruled by the Trial Court. "The statutory phrase `arising out of and in the course of employment,' which appears in *Page 441 most workmen's compensation laws, is deceptively simple and litigiously prolific." Cardillo v. Liberty Mut. Ins. Co., 91 L. Ed. (U.S.) 743, 749. However, according to the great weight of modern authority, assaults are compensable if the assault arises out of a work matter and not out of a purely personal quarrel unrelated to the employment. Current Trends in Basic Principles of Workmen's Compensation, 12 Mass. L. Soc'y J. (May, Aug., 1947) Note 386. In this case it is clear that the ill feeling between Newell and Palmer occurred because of the work relations, while at work and as a result of the work done. Hegler v. Company, 224 N.C. 669, 671: "While the assault may have resulted from anger or revenge, still it was rooted in and grew out of the employment." For an adequate collection of cases and able discussion sustaining this proposition, see Horovitz, Assaults and Horseplay under Workmen's Compensation Laws, 41 Ill. L.R. 311 (1946).
The contention that the claimant's death did not occur "in the course of his employment" cannot be sustained in view of the liberal interpretation given to this phrase in our law. Whitham v. Gellis, 91 N.H. 226; Bernier v. Mills, 93 N.H. 165; Maltais v. Assurance Society, 93 N.H. 237, 240. While it is true that the assault in the Maltais case, supra, was sportive in nature, the reasoning of that decision is not so limited. An assault whether by design or in sport is in the course of employment where, as here, it was caused by or resulted from working conditions.
It is contended that Newell's death was caused in whole or part by violation of law or by serious and wilful misconduct. R. L., c. 216, s. 10, reads as follows: "EMPLOYEE'S FAULT. The employer shall not be liable for any injury to the workman which is caused in whole or in part by the intoxication, violation of law, or serious or wilful misconduct of the workman." Although Newell committed no battery, the Court has found that he committed an assault. At most it was the misdemeanor of simple assault (R. L., c. 455, s. 22) and not the felony of aggravated assault. R. L., c. 455, s. 23. In determining whether the assault is serious or wilful within the meaning of the statute, we consider the misconduct and not the result. The misconduct must be grave and not trivial. Here, as in Maltais v. Assurance Society, supra, we hold that a simple assault or a battery is not serious or wilful misconduct within the meaning of the Workmen's Compensation Law.
In Newell v. Insurance Co., ante, 26, it was decided that Newell's assault was a violation of law within the meaning of an exclusionary *Page 442 clause in the policy. Of course that contract decision is not res judicata of this compensation case. There we were dealing with a private agreement between two parties; here we have a public statute embodying remedial legislation which has and will continue to receive a liberal interpretation to effectuate its purpose. No public policy was involved in the former case of contract but it is involved in the instant case of master and servant relationship. This was so even common law, see Richard v. Company,79 N.H. 380. "For it is not out of line with the common law to deal with causes where the relation of master and servant exists differently from causes where there is no such relation." Pound, "The Spirit of the Common Law" (1921) 30.
We need not now decide how serious a crime must be committed by the employee to preclude his widow and children receiving benefits under the workmen's compensation law. We do decide that the Legislature did not intend that any and every violation of the law was meant. It would come as a surprise to labor, industry and the Legislature to rule that every violation of law, including the technical and trivial, barred recovery.
Any such construction would bar an employee, on an authorized errand for his employer, from compensation if he were injured as a result of committing the statutory crime of expectoration. R. L., c. 165, s. 17. If a workman should receive the maximum fine of one dollar for the first offense of cursing (R. L., c. 448, s. 2) and should receive injuries in the course of his employment while causally violating this statute, his injury would not be compensable under such a construction. If these examples may be extreme, they serve to indicate that the Legislature did not intend to include all misdemeanors. We conclude under the circumstances of this case that Newell's technical and simple assault was not a violation of law under R. L., c. 216, s. 10.
Compensation was also denied because Newell was an "aggressor." There is much conflict in the decisions on this point (112 A.L.R. 1258, 1270) but the trend of the modern authority is to allow recovery. In order not to bludgeon the bar into insensibility by copious citations and prolix footnotes we refer to the discussion and collection of cases in the articles cited in the first part of the opinion. The defense of "aggressor" is not to be found in our statute or in other compensation laws. By the application of tort reasoning the defense has been judicially inserted in some compensation cases. We have already refused to read in a similar defense in sportive assaults (Maltais v. *Page 443 Assurance Society, supra) and we see no reason for its judicial insertion in this assault. In reaching this result we have endeavored to follow the able reasoning of three leading cases in workmen's compensation law: Cardozo, J., in Leonbruno v. Mills, 229 N.Y. 470; Rutledge, J., in Hartfordc. Co. v. Cardillo, 112 F (2d) 11; and Marble, C. J., in Maltais v. Assurance Society, supra. Plaintiff is entitled to compensation in accordance with R. L., c. 216.
Exceptions sustained.
All concurred.
ON REHEARING. After the filing of the foregoing opinion, the defendant moved for a rehearing. Argument was invited on the application and construction of R. L., c. 216 s. 10.