194 A.D. 65 | N.Y. App. Div. | 1920
The claimant was employed as an oiler in a factory of his employer to oil its machinery. One of the machines was running defectively because of an over supply of oil. The claimant testified that his foreman accused him of putting too much oil on the machine, and then frankly stated: “ I called him a liar. He looked up to see if anyone was looking and he hit me three times, first in the eye and in the jaw.” He again testified: “ Q. What did you call Mr. Smith? A. A liar. Q. What kind of a liar? A. Just a liar when he accused me of breaking the die.” The foreman testified that he called the claimant over to the machine and showed him that excessive oiling had the effect of causing it to slip; that the claimant then complained that he had been accused previously of breaking another machine; that thereupon this conversation occurred: “ I said certainly you broke it. He said: ' Mr. Smith if you say I broke it you are a God damn liar/ with that he had an oil can with a spout that long [indicating], he held it in his right hand. He made a movement and as it looked to me, intended to strike me with the oil can.” The foreman further -testified .that he then threw up his hands and struck the claimant in self-defense. The witness Nicholl testified that the foreman told the claimant that he put too much oil on the machine; that he was to blame because he was the man who oiled it; that the subject of a similar trouble with
The claimant argues that words will not justify an assault; that the foreman struck the first blow; that the foreman, not claimant, was, therefore, the aggressor. That argument addressed to a jury in an assault action brought by claimant against the foreman would doubtless call for a verdict in favor of claimant. It has no force here where the claim laid is against an employer, duties to whom owed by both the claimant and the foreman may have been violated by both. The sole question is whether the claimant was injured by an accident arising out of and in the course of his employment. If claimant can be said to have instigated the altercation, then the resulting assault proceeded from a risk not originated by or arising out of the employment. Moreover, in provoking the assault, if so he did, the claimant performed no duty for his master, but on the contrary deserted that duty for personal ends, and thereby stepped out of his employment. In Griffin v. Roberson & Son (176 App. Div. 6) an employee named Griffin kicked his fellow-servant, Cartwright, who retaliated by shoving Griffin against a box over which he fell, receiving injuries from which he died. A claim made for his death was dismissed by this court with an opinion written by Mr. Justice Cochrane in which it was said: “ When Griffin lost his temper and assaulted Cartwright, he was not promoting or enhancing in any legitimate sense the interest of his employer, but he stepped outside the scope and sphere of his employment to serve a personal mental condition. * * * The injury was not a peril of the service, nor reasonably incidental thereto. It arose wholly from a voluntary act of Griffin entirely unnecessary, and not in the protection or advancement of the master’s interest, nor connected therewith.
The award should be reversed and the claim dismissed.
All concur, except John M. Kellogg, P. J., and Cochrane, J., dissenting.
Award reversed and claim dismissed.