I cannot agree with the judgment of my brethren that the evidence, as a whole, compels the conclusion that Dunlap had voluntarily turned aside from the duties of his employment and was willingly engaged in a fight or horseplay at the time of his death. The principle of law upon which my brethren base their opinion is supported by an unbroken line of authorities, as shown by the citations made by them. My dissent is based upon the inferences to be drawn from the testimony. Where the disagreement between two fellow employees arises out of the employer's work in which they are engaged, and as a result of the disagreement one of the employees is injured, as I understand the authorities, the jury may draw the inference that the injury arose out of the employment. This proposition has support in Pekin Cooperage Co. v. Industrial Commission,285 Ill. 31, 120 N.E. 530, 532, where it is said: "Where men are working together at the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where the disagreement arises out of the employer's work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of the employment."
That case was cited with approval by the Commission of Appeals in the McClure Case, cited by my brethren.
In this case the controversy arose while Dunlap (Bass) was actually engaged in his employment. Thus the witness Redmond said: "The next morning about 10 A. M. March 15, C. H. Shawver, J. S. Yancey, H. H. Bass (H. H. Dunlap), C. K. Gibbs and I were in the work room again, which is just south *Page 669 of No. 1 Pump House, doing shop work because it was raining too hard to work on live wire on the outside."
The controversy arose out of the fact that Gibbs had painted the handlebar of Dunlap's tool box the day before, and the immediate cause of the controversy was his physical attempt to repaint the handlebar a second time over Dunlap's protest. These facts bring this case within the proposition of this court in the Saxon Case cited by my brethren, where it is said: "The altercation arose about a matter that originated in and had to do with the business of their common master." And as also said in that case: "The employment was at least a contributing proximate cause — a hazard to which he (Saxon) would not have been equally exposed apart from the employment. His presence at the place of injury was solely for and in the interest of his master's business. The trouble originated in and arose out of and about the master's business, and not out of personal matters of either Saxon or Johnson (the aggressor)."
The facts of this case are clearly distinguishable from the facts of the Richardson Case and the Collins Case, cited, by my brethren. In the Richardson Case the controversy was over the fact that Williams had taken Richardson's lunch the day before. On the morning of the controversy he had not taken the lunch, nor was he threatening to take it. Everything that was said and done related to what had been done on the day before, and therefore the trouble did not originate in the master's business, but was a matter purely personal between Richardson and Williams. The same distinction exists in the Collins Case. In that case Roberts had painted the master's boiler. Collins interfered with the job. After all that was past and the parties had resumed their duties, the controversy was renewed, as in the Richardson Case.
The principle of law I am contending for was embodied in the following question propounded by Judge Leddy, in speaking for the Commission of Appeals, in the Hardie Case cited by my brethren: "The question arises, Does an injury received by an employee engaged in the active performance of his duties on the premises of the employer forfeit his right to compensation if he receives such injury while attempting to prevent a third party from interfering with the performance of the duties he owes to his employer?"
Judge Leddy answered his question in the negative, and in support of his answer announced the following proposition which I think absolutely controls this case: "* * It is inherent in and incidental to any employment for an employee to resist forcible efforts which tend to prevent the discharge of the duties he owes to his employer. The term `arising out of the employment,' in the sense in which it is used, is not to be understood as being restricted and confined to the exact duties prescribed for the servant. Whatever may be incidental to the employment must necessarily belong to it. A risk incidental to an employment may fairly be said to be one which belongs to or is connected with what a workman has to do in fulfilling his contract of service. U.S. Fuel Co. v. Ind. Com., 310 Ill. 85, 141 N.E. 401; Boorde v. Ind. Com., 310 Ill. 62,141 N.E. 399."
The tool box was incidental to Dunlap's employment, and therefore he had a right to protect it against the efforts of Gibbs to paint it against his will. Being incidental to Dunlap's employment, it belonged to his employment. The risk Dunlap incurred in trying to prevent Gibbs from painting the handle of his tool box, being incidental to his employment, can be said to be one which belonged to, and was connected with, what Dunlap had to do in discharging his duties to his master. Of course, it must be conceded that the attempt of Gibbs to paint the handle of the tool box was a trivial circumstance, but the law does not deny compensation because the controversy was provoked over a trivial matter. On this issue it was said in Pekin Cooperage Co. v. Industrial Commission, supra: "The origin of this difficulty was trifling — the taking of a few staves from the claimant's rack, to which he objected, saying, as he testified, that if Miller would stay in there he would be up with the claimant. The dispute was concerning the employer's work in which the men were both engaged, and there is evidence tending to show that the claimant was not responsible for the assault."
All that is required is that the disagreement arise out of the employer's work. Had Gibbs been attempting to destroy the box, the right to compensation would be conceded. The difference between an act to destroy and Gibbs' act to paint is merely one of degree, and cannot control the disposition of the case. This necessarily follows because, as said by Judge Leddy in the Hardie Case, the Workmen's Compensation Law arbitrarily restricts the rights of employees who come within its provisions, and it has therefore been "the policy of the courts of this state to give as broad and liberal construction of such act in *Page 670 favor of the employee as the terms of the act will permit." In further support of the affirmative answer to his question Judge Leddy, in the Hardie Case, cited the following proposition from Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916: "What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's tasks."
In affirming the judgment of this court allowing compensation in the McClure Case, supra, Judge Gallagher, speaking for the Commission of Appeals, cited with approval from Pekin Cooperage Co. v. Industrial Commission, supra, the proposition quoted above.
Applying that proposition to the facts of the McClure Case, Judge Gallagher then said: "We do not think the fact that the blow which inflicted the injury sustained by him was struck by Ed Hodge, the brother of his fellow fireman, Jim Hodge, who first assaulted him, affords any ground upon which to differentiate this case from cases above cited or to deny plaintiff in error compensation for his injuries. The original assault having resulted from a dispute between plaintiff in error and Jim Hodge growing out of their respective duties under their common employment, the unlawful and violent blow, struck by Ed Hodge which was induced thereby must be considered a part and parcel thereof. We think that the injury so sustained by plaintiff in error had to do with and originated in the duties of his employment, and, though it was caused by the act of Ed Hodge, who at the time had a personal intent and purpose to injure him, such act was, within the meaning of our statute, directed against him as an employee or because of his employment."
I do not think it can be said, as a matter of law, that Dunlap renewed the controversy or scuffle after Gibbs sat down. True, Gibbs testified to that fact, but Gibbs was an interested witness on this issue. The testimony of the other witnesses is subject to the construction that Gibbs himself renewed the controversy. But this presents an immaterial issue. The controlling point is that the controversy originated in Dunlap's employment.
Whether the matter be treated as a fight or as horseplay is immaterial, provided the controversy had its origin in the employer's business. In Cassell v. United States Fidelity Guaranty Co.,115 Tex. 371, 283 S.W. 127, 128, 46 A.L.R. 1137, the Supreme Court said: "Considering every employee peculiarly exposed to such pranks from his coemployees as are inspired by nothing more than a well-nigh universal human craving for fun, and recognizing that such pranks, when careless though innocent, not infrequently occasion bodily harm, we are forced to consider these pranks as a hazard which the employee required to work with others must encounter in the performance of his duties, and hence such pranks constitute a risk reasonably inherent in or incident to the conduct of the employer's business."
As I understand the facts of this case and the law controlling the facts, the judgment of the lower court should be affirmed. *Page 1056