I am unable to concur in the opinion of Judge CHASE, because I think the uncontradicted facts and the most favorable inferences that can be drawn therefrom did not justify an award in the claimant's favor. The employer was engaged in the manufacture of tin boxes. The claimant was employed to oil, under the supervision and direction of a foreman by the name of Smith, certain machinery in the factory. Some time preceding claimant's injury, Smith ascertained, while performing the duties assigned to him, that one of the machines oiled by the claimant was not working properly, by reason of a superabundance of oil thereon. He thereupon sent for the claimant, took him to the machine, showed him that it was not working properly, and told him it was due to the fact that he had used too much oil. In response to the information thus given, the claimant told the foreman he was a "liar," and the foreman knocked him down, inflicting the injuries for which the award was made.
The award was made upon the theory that it was an accidental injury to the claimant which arose out of and in the course of his employment. It may be conceded that the claimant's calling the foreman a liar did not justify him in assaulting claimant, but that is beside the questions presented, which are: Was it an accidental injury? and if so, Did it arise out of and in the course of employment? Both questions, as it seems to me, must be answered in the negative. The claimant was employed to oil machines; the foreman was employed to see that the machines were properly oiled. This was the work *Page 85 which the employer had engaged them respectively to do. When the foreman determined the machine was not properly oiled, it was his duty to so inform the claimant, and when the claimant was thus informed, it was his duty to acquiesce in that determination. This necessarily follows if any discipline whatever was to be maintained among the employees. When the claimant, therefore, refused to obey the order of or acquiesce in the instructions given by the foreman, and called him a liar, he did what he was not employed to do; he did something independent of and not connected with the employment, something not in furtherance of or connected with the employer's business. It was something outside of it — an act of insubordination which would have justified his immediate discharge. He provoked the assault, not in the interest of his employer, but to gratify or satisfy his own personal feelings. The same may be said of the foreman. The provocation of the assault and the assault itself had no legitimate connection with the business of the employer.
In the prevailing opinion much stress is laid on Matter ofHeitz v. Ruppert (218 N.Y. 148), but that case, as it seems to me, is clearly distinguishable from this. There, it was the duty of claimant to care for the horses intrusted to him, and see they were not injured by injudicious wetting or otherwise by a fellow-employee. A quarrel arose over the act of an employee in improperly wetting the horses and an injury resulted from a personal encounter which grew out of the quarrel. It was held that the injury was accidental and arose out of and in the course of the employment. Here, no such facts are involved. There was no effort to show that any business interest of the employer could be served by the claimant calling the foreman a liar or by the foreman assaulting the claimant.
A case very much like the present one is Matter of Stillwagon v. Callan Brothers (183 App. Div. 141; affd., *Page 86 224 N.Y. 714). There, the claimant's husband and another employee of Callan Brothers were engaged in unloading brick from a railroad car into trucks. They got into a dispute as to who was first entitled to load, came to blows, and claimant's husband was killed. It was held the death was not due to an accident growing out of or connected with the work which the claimant was employed to perform; that when he got into an altercation with the other employee he did something not in furtherance of the employer's interest nor for which he had been employed. (See; also, Matterof DeFilippis v. Falkenberg, 170 App. Div. 153; affd.,219 N.Y. 581; Matter of Griffin v. Roberson Son, 176 App. Div. 6. )
For the foregoing reaons I dissent and vote to affirm the order of the Appellate Division reversing the determination of the industrial commission.
HOGAN, POUND and CRANE, JJ., concur with CHASE, J.; HISCOCK, Ch. J., and ANDREWS, J., concur with McLAUGHLIN, J.
Order reversed, etc.