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 findings 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 *Page 80 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.
"Answering the accusation the claimant called his foreman * * * `a liar' and immediately his foreman struck claimant over the left eye and on the jaw, and then threw him down the stairs. At the time of this assault claimant was wearing glasses, and the force of the blow delivered by the foreman over claimant's left eye shattered the glasses and pieces of same lacerated claimant's face 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 [Cons. Laws, ch. 67], § 20; Matter of Heitz v. Ruppert, 218 N.Y. 148. ) 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, section 3.)
The claimant's right to the award upon the findings of the commission is directly sustained by the decision of this court inMatter of Heitz v. Ruppert (supra). In *Page 81 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 shoulder, saying, `George, don't do that again.' Guth slapped claimant on the shoulder and as 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." (p. 151,)
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 the 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." (p. 153.)
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 *Page 82 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." (p. 153.)
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 his denial did not, however, justify either in law or in fact an *Page 83 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 abandoned 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);Matter of Markell v. Green Felt Shoe Co. (221 N.Y. 493);Matter of Verschleiser v. Stern Son (229 N.Y. 192); Matterof Leonbruno v. Champlain Silk Mills (229 N.Y. 470); Swift Co. v. Industrial *Page 84 Comm. (287 Ill. 564); Pekin Cooperage Co. v. IndustrialComm. (285 Ill. 31); M'Intyre 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.