I dissent. The crucial issue is conceded to be whether the injury “arose out of” the employment. The majority assumes to settle the question by the observation that the Constitution declares that injury so sustained shall be deemed compensable “irrespective of the fault of any party”; that since aggression is fault, it is therefore not a defense. This oversimplified solution is contrary to established state policy and decisional law.
The holding in Pacific Emp. Ins. Co. v. Industrial Acc. Com., 26 Cal.2d 286 [158 P.2d 9, 159 A.L.R. 313], does not sustain the proposition. As the majority opinion points out, the court there abandoned the long existing rule that the nonparticipating “victim” of horseplay was not entitled to compensation. Here we are dealing with the aggressor, not his victim. Nor is reference to the result under the doctrine of respondeat superior in point. There again the injuries to another person are involved. In my opinion the words “without the fault of any party” apply, as the Constitution indicates, after it is determined that the injury arises out of the employment. As the opinion concedes, an aggressive act has not uniformly been deemed to be an act coupled with and therefore arising out of employment. On the contrary the weight of authority has supported and still supports the view that an aggressor has stepped aside from his employment and at least as to his own injuries is not within the purview of the compensation acts.
*672It is true that the salutary provisions of workmen’s compensation laws in this state and elsewhere generally have abolished the rule of assumption of risk, the fellow servant doctrine and contributory negligence as defenses in proceedings in behalf of an injured workman. But it does not follow that all other defenses have been abolished.
Begardless of the seemingly broad and all-inclusive language of our constitutional provision as an enabling act, it has always been recognized that certain facts must be established and conditions found to exist before the compensation law may be invoked. It is essential that the relationship of employer and employee be present at the time of the injury. It is also essential that the injuries must have been sustained by the workmen “in the course of their employment.” (Const., art. XX, § 21.) In the exercise of its plenary power the Legislature has imposed other conditions on the right of an employee to receive compensation from his employer. Section 3600 of the Labor Code requires (a) that both the employer and the employee be subject to the compensation provisions of the code; (b) that, at the time of the injury, the employee be performing services growing out of and incidental to his employment and be acting within the course of his employment; (c) that the injury be proximately caused by the employment, either with or without negligence; (d) that the injury be not caused by the intoxication of the injured employee; or (e) that the injury be not intentionally self-inflicted.
The incidents of employment relationship and “course of employment” requirements of subdivisions (a), (b) and (c) cannot be seriously questioned; and the prohibitions against compensation, notwithstanding the concurrence of all other requirements, contained in subdivisions (d) and (e) have never been successfully attacked.
Furthermore section 4551 of the Labor Code denies compensation as to one half where the employee is guilty of serious and wilful misconduct.
No one may rightfully question the power of the Legislature to place proper restrictions on the right to compensation subject of course to the constitutional provisions. Whether an “aggressor” should be entitled to compensation and the extent if any to which he may be so entitled is a question of public policy, a subject on which the Legislature might well provide appropriate regulations. The fact that it has not done so may be accounted for by the. fact that in the *673history of the interpretation of the applicable law in this state both by decisions of the commission and by language of this court, the rule lias invariably been to deny compensation to the “aggressor” in assault eases.
In view of that history, interpretation and long standing public policy, it is not the province of this court to lay down a rule that an aggressor should be entitled to compensation under any and all circumstances. The offense might be of such a nature as to exclude the conduct of the aggressor-employee from consideration as action within the course of his employment. Such conduct might be in violation of some penal law of the state involving conduct malum in se and of the most flagrant nature. It might even result in murder. In such a case, if the commission’s position be sustained, the perpetrator of the crime could be receiving compensation while confined in state’s prison for the offense. Liberal construction of compensation laws should not go the length now established by the majority decision as the policy of the state that an aggressor should receive compensation benefits. It certainly should not be the rule that an employee committing a criminal assault on another should be deemed to be acting for his employer for the purpose of collecting from him compensation for injuries which he sustained as a result of his own criminal act. Whether the aggressor-employee’s conduct would constitute such a penal offense as to entitle him to or exclude him from compensation should be determined in accordance with some legislative guide. If the acts of the aggressor-employee amount to serious and wilful misconduct compensation to the extent of one half may in a proper case be awarded as provided by section 4551 of the Labor Code. But it has never been held that regardless of the seriousness of the offense, the offender is entitled to compensation—one half or at all.
The decisions of the commission which have denied compensation to the aggressor, with the sole exception of the order on rehearing in this proceeding, include the following: Hemphill v. Industrial Acc. Com., 20 I.A.C. 110; Sosson v. Industrial Acc. Com., 17 I.A.C. 120; Turner v. Industrial Acc. Com., 17 I.A.C. 119; McGuirk v. Frank J. Klimm Co., 17 I.A.C. 12; Wilson v. Carter, 14 I.A.C. 78; Challman v. State Harbor Commrs., 9 C.C.C. 120; Galpin v. Industrial Acc. Com., 2 C.C.C. 29.
*674Although an aggressor was not directly involved in Globe Indemnity Co. v. Industrial Acc. Com., 193 Cal. 470 [225 P. 273], and Globe Indemnity Co. v. Industrial Acc. Com., 2 Cal. 2d 8 [37 P.2d 1039], the rule of noncompensability for injuries on behalf of an aggressor established and uniformly adhered to by the commission was not questioned and was approved by implication.
Numerous authorities elsewhere disclose the prevailing view to be that a claimant who is the aggressor in an assault steps aside from his employment for a purpose of his own even though the argument which precipitates the assault is work-incited. Such cases follow the general rule (see note, 112 A.L.R. at page 1270 with citation of cases), that where the claimant is the aggressor in provoking an assault upon himself, the injury does not arise out of the employment. (Vollmer v. City of Milwaukee (1948), 254 Wis. 162 [35 N.W. 2d 304]; Riley v. Industrial Com. (1946), 394 Ill. 126 [67 N.E.2d 172] ; Kimbro v. Black & White Cab Co. (1934), 50 Ga.App. 143 [177 S.E. 274]; Merkel v. T. A. Gillespie Co. (1932), 10 N.J.Misc. 1081 [162 A. 250]; Davis v. Robinson, (1932), 94 Ind.App. 104 [179 N.E. 797, 799-800]; Triangle Auto P. & T. Co. v. Industrial Com. (1931), 346 Ill. 609 [178 N.E. 886] ; cf. Horvath v. LaFond (1943), 305 Mich. 69 [8 N.W.2d 915]; Williams v. Industrial Com. (1939), 63 Ohio App. 66 [25 N.E.2d 313]; Cherry v. Magnolia Pet. Co. (Tex.Com.App. 1932), 45 S.W.2d 555; Fulton Bag & Cotton Mills v. Haynie (1931), 43 Ga.App. 579 [159 S.E. 781] ; Martin v. Sloss-Sheffield Steel & Iron Co. (1927), 216 Ala. 500 [113 So. 578]; Curran v. Vang Const. Co. (1926), 286 Pa. 245 [133 A. 261]; Stillwagon v. Callan Bros. Inc. (1918), 183 App.Div. 141 [170 N.Y.S. 677] ; Griffin v. A. Roberson & Son (1916), 176 App.Div. 6 [162 N.Y.S. 313, 314].) Carr v. Wm. C. Crowell Co., 28 Cal.2d 652 [171 P.2d 5], Fields v. Sanders, 29 Cal.2d 834 [180 P.2d 684, 172 A.L.R. 525], and similar eases are consistent with that general rule. Those cases involve the right of third parties to recover from an aggressor’s employer for injuries inflicted by the aggressor while acting in the course of his employment. (Cf. Hartford Acc. & Indem. Co. v. Cardillo (1940), 72 App.D.C. 52 [112 F.2d 11], cert. den. 310 U.S. 649 [60 S.Ct. 1100, 84 L.Ed. 1415].) In those cases it was not the aggressor-employee who was seeking recovery of benefits for injuries which he received. Such cases are not in point and should not be considered to have controlling effect here.
*675Cases which are said to Í3idicate a “modem trend” to compensate the aggressor for his injuries are conceded in the majority opinion not to be in accord with the weight of authority. (See Schueller v. Armour & Co. (1935), 116 Pa.Super. 323, 328 [176 A. 527] ; Traders & General Ins. Co. v. Mills (Tex.Civ.App. 1937), 108 S.W.2d 219, 224; Hartford Acc. & Indem. Co. v. Cardillo (1940), 72 App.D.C. 52 [112 F.2d 11], cert. den. 310 U.S. 649 [60 S.Ct. 1100, 84 L.Ed. 1415]; Newell v. Moreau (1947), 94 N.H. 439 [55 A.2d 476, 479-480] ; Dillon’s Case (1949), 324 Mass. 102 [85 N.E.2d 69, 72]; Commissioner of Tax. & Fin. v. Bronx Hospital (1950), 276 App.Div. 708 [97 N.Y.S.2d 120, 122-123]; cf. Stulginski v. Waterbury Rolling Mills Co. (1938), 124 Conn. 355 [199 A. 653]; Haas v. Brotherhood of Trans. Workers (1945), 158 Pa.Super. 291 [44 A.2d 776, 780] ; see eases collected Horovitz article, 41 Ill. Law Rev. 311, at p. 363, n. 170.) The applicable rule must necessarily depend on the law of the forum.
Because this court in Pacific Fmp. Ins. Co. v. Industrial Acc. Com., supra, 26 Cal.2d 286, overruled numerous earlier cases which denied compensation to a nonpartieipating employee injured through the horseplay of a fellow worker is no reason now to disclaim adherence to the cases in this state which have impliedly approved the general rule heretofore followed by the commission in aggressor assault cases. The decision in that case may properly lead to a holding of compensability for injuries suffered by the victim of the aggressor; but it is not authority for compensating the self-provoked injuries of an aggressor. The risk that an employee may receive injuries from his own act of aggression should not be considered incidental to his employment. If the ride as heretofore established in this state is to be relaxed and recovery be authorized under circumstances which do not otherwise offend the law, the change should be made by the Legislature, not by the courts. In my opinion the award should be annulled.
Schauer, J., and Spence, J., concurred.