The opinion of the court was delivered by
Thiele, J.:This was an action for compensation for an injury sustained by plaintiff while in defendant’s employment.
The claim was denied by the commissioner of workmen’s compensation, but upon appeal was allowed by the district court.
Claimant was employed by John Morrell & Company as a traveling salesman. While driving upon the highway near Belleville, the windshield of his car was broken by a chunk of mud intentionally thrown from another car. Glass from the windshield was driven into his eye, causing the loss of sight and necessitating its removal. He claimed the injury occurred in the course of his employment and arose out of it, as he was required to travel upon the highway to reach customers.
As to the time, place and circumstances of the accident it happened in the “course of employment,” such phrase simply meaning that it happened while he was at work in his employer’s service. (Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863.) But to impose liability upon the employer, the injury must also arise out of the *593employment. The compensation act requires that the injury “arise out of and in the course of” the employment. Both elements must be present to justify a recovery. “Arising out of” means that the accident came out of the employment and makes it a condition precedent to the right to recover compensation that the occurrence shall have resulted from the risk reasonably incident to the employment and that there be a causal connection. While not ordinarily essential that it be peculiar to the particular employment in which the workman was engaged at the time of the injury, it must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business. Claimant’s injury might have been sustained while traveling for his own pleasure as well as while he was in defendant’s employment. The employment in no way provoked or invited the attack. Apparently the occupants of the car would have thrown the mud whether or not claimant had been employed by defendant. There was no causal connection as was found in the case of Stark v. Wilson, 114 Kan. 459, 219 Pac. 507, where a streetcar conductor, while standing on the rear platform operating his car, without fault on his part was stabbed and killed by a passenger. It was there held that robbery is a hazard incident to employment as a street-car conductor, since he is known to be in possession of money, and that an injury inflicted in the perpetration thereof or in an assault provoked by the fact that he was the conductor of the car is compensable, but the court pointed out that—
“The accident must result from a risk naturally and reasonably incident to the employment. The risk must be within rational comprehension as an incident of the employment, and must be one to which the workman would not- be equally exposed outside of the employment. It is not enough for the dependents to say the conductor would not have been killed if he had not been at his place on his car at the time he was stabbed. They must say he was killed because he was a street-car conductor on duty, and so was overtaken by a hazard to which performance of his duty exposed him.” (p.462.)
The meaning of the phrase “arising out of” is further distinguished in Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, and in Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174, and was defined in Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, by quoting from McNicol’s case, 215 Mass. 497, 498:
“ ‘It is sufficient to say that an injury is received “in the course of” the employment when it comes while the workman is doing the duty which he *594is employed to perform. It “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. But it excludes an injury which cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'" (p. 553.)
The rule was stated that:
“If in any case the cause of injury takes.its rise from something extraneous to the employment, the injury does not arise out of the employment, and recovery should be denied on that ground, not on the ground that the employment is not proximate cause. The problem is usually solved, however, by invoking the doctrine of proximate cause.” (p. 554.)
There was a causal connection between the employment and the death of a traveling salesman in the case of Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536, wherein the claimant while traveling over a highway was killed by contact with a high-voltage wire which had been strung above the highway and was blown down in a storm; the injury from the wire was a hazard of the road to which the employment of the deceased exposed him.
It appears that the injury sustained by claimant was the result of an attack by a third party in no way connected with his employment. Compensation has been denied for injuries inflicted by belligerent workmen and through horseplay. The rule was stated in Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, quoting from Corpus Juris:
“ ‘An employee is not entitled to compensation for an injury which was the result of sportive acts of coemployees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise “out of the employment,” and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.’ ” (p. 310.)
*595This rule was again expressed in Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113, where it was stated that an employee intentionally injured by another employee cannot recover under the workmen’s compensation act unless the wrongful conduct has become habitual and the habit is known to the employer. (See, also, 15 A. L. R. 588; 21 A. L. R. 758; 29 A. L. R. 437; 40 A. L. R. 1122 and 72 A. L. R. 110.) It would seem to follow that if a workman cannot recover for injuries intentionally inflicted by a fellow employee over whom the employer presumably has some control, he is not entitled to compensation for malicious injury by a third person in no way connected with the employment and entirely outside the employer’s authority, unless there is some circumstance that, by reason of his employment, makes him peculiarly and especially subject to assault. (See Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259; Stark v. Wilson, supra; Phillips v. Kansas City L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4.)
All persons are exposed to the pranks of boys throwing missiles at passing cars and at other objects, movable or stationary, and the claimant was no more exposed to such hazard by virtue of his employment than anyone else. Neither can it be said that this was a hazard of the road. This was not a piece of mud thrown by the wheels of a passing car. It was deliberately thrown, and it might have been thrown at claimant wherever he was. While there seems to be a tendency toward more liberality in recovery with respect to street risks incurred in the course of employment (see note 80 A. L. R. 126), we do not believe that under the facts of this case it should be held, as a matter of law, that the claimant’s injuries arose out of his employment.
The judgment of the lower court awarding compensation is reversed, and the cause is remanded with instructions to render judgment for the defendant.