patient had previously done, he gave it, as his opinion, that the injury had resulted from strain in lifting the pipe. Support of his conclusion is found in the known facts, previous ability to work, the exertion, and the rupture. Failure of the injury to cause serious discomfort until the second day after its occurrence does not negative the inference arising from these facts. "Sometimes there is complete absence of pain and tenderness in the hernia itself." Enc. Britannica. The article brought to our attention in the brief says traumatic hernia completely develops immediately or in a day or two after the blow. Common sense suggests that a rupture from a strain might develop more slowly than one caused by a blow. The case has been very poorly developed. No effort by the applicant strictly to prove the claim was made until after its rejection. He relied upon the result of the Commission's investigation, and apparently was not advised of the supposed insufficiency of the evidence before the finding and announcement of the result. Then, although an informal rehearing seems to have been allowed, no new evidence of consequence was filed. The suggestion here of additional proof is utterly futile. However, the facts disclosed by the record establish the claim. Accordingly an order will be entered requiring the Commission to ascertain the amount of the indemnity and cause it to be paid. Annotation-Hernia as an "accident" or "personal injury" within the meaning of the compensation act. As to application and effect of workmen's compensation acts generally, see annotation, ante, 23. All of the cases now take the position that a hernia caused by a strain or exertion of some kind while the workman is acting within the scope of his employment is an "accident" or a "personal injury" within the meaning of the compensation acts, for which compensation is recoverable. In addition to POCCARDI V. PUBLIC SERVICE COMMISSION and ZAPPALA V. INDUSTRIAL INS. COMMISSION the question has been passed upon by but one other American court. Thus, a workman's death may be found to be due to an accident where, although there was some evidence pointing to cancer, a rupture occurred while the workman was in the very act of doing some heavy work; namely, furrowing heavy posts, by pushing them forward against the knives of a machine by pressing his abdomen forcibly against the end thereof. Voorhees v. Smith Schoonmaker Co. (1914) 86 N. J. L. 500, 82 Atl. 280, 7 N. C. C. A. 646. The decision by the House of Lords in Fenton v. J. Thorley & Co. [1903] A. C. (Eng.) 443, 72 L. J. K. B. N. S. 87, 52 Week. Rep. 81, 89 L. T. N. S. 513, 9 Times L. R. 684, 5 W. C. C. 1, that a rupture caused by overexertion in attempting to turn a wheel is an accident, settled the question under the English act. Some of the earlier decisions in England were to the contrary; but these must now be considered as overruled. Roper v. Greenwood (1901) 83 L. T. N. S. (Eng.) 471; Perry v. Baker (1901; C. C.) 3 W. C. C. (Eng.) 29. A rupture caused by the effort of separating a plank from one to which it was stuck by ice formed during the preceding night may properly be found to have been caused by accident. Timmins v. Leeds Forge Co. (1900) 16 Times L. R. (Eng.) 521, 83 L. T. N. S. 120. Compensation is recoverable for incapacity caused by hernia, although the workman had previously suffered from a slight hernia, and the accident in question merely aggravated its consequences. Brown v. Kemp (1913) 6 B. W. C. C. (Eng.) 725; Fulford v. Northfleet Coal & Ballast Co. (1907; C. C.) 1 B. W. C. C. (Eng.) 222. Where a workman suffered an accident which caused a rupture and necessitated an operation, and at the time of the operation an old hernia was also operated upon, and the workman died eight months after, having shown signs of heart failure soon after the operation, the arbitrator may find that the death resulted from the accident, where the medical evidence indicated that in order properly to operate for the second rupture, the first one must also be operated for. Mutter v. Thomson (1913) W. C. & Ins. Rep. 241, [1913] S. C. 619, 50 Scot. L. R. 447, 6 B. W. C. C. 424. A man employed as a stoker, who had been ruptured three or four years before, and was wearing a truss sufficient to prevent strangulated hernia under ordinary circumstances, who left home well and in excellent spirits, and shortly after his return to work was found to be in great agony, and died shortly afterward from strangulated hernia, may be found to be suffering from injury by accident arising out of the employment, although there was no evidence as to how the hernia came down so as to strangulate, nor of any specially heavy work done by the deceased to account for it. Scales v. West Norfolk Farmers' Manure & Chem. ical Co. (1913) W. C. & Ins. Rep. (Eng.) 165, 6 B. W. C. C. 188. W. M. G. CIAL COURT. MASSACHUSETTS SUPREME JUDI- Plumb v. Cobden Flour Mills Co. [1914] A. C. 62, 83 L. J. K. B. N. S. 197, 109 L. T. N. S. 759, 30 Times L. R. 174, 58 RE ALMA REITHEL, Widow of Erhardt Sol. Jo. 184, 51 Scot. L. R. 861, 7 B. W. Reithel, Employee. PONDVILLE WOOLEN MILLS, Employer. (—— Mass. —, Master and servant 109 N. E. 951.) C. C. 1; Fitzgerald v. Clarke [1908] 2 K. B. 796, 77 L. J. K. B. N. S. 1018, 99 L. T. N. S. 101; Andrew v. Failsworth Industrial Soc. [1904] 2 K. B. 32, 73 L. J. K. B. N. S. 510, 90 L. T. N. S. 611, 52 Week. Rep. 451, 68 J. P. 409, 20 Times L. R. 429, 6 W. C. C. 11; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; State ex rel. Duluth V. District Ct. Brewing & Malting Co. workmen's compensation act - injury by bullet. Injury inflicted upon the superintendent of a mill, whose duty is to order trespassers 129 Minn. 176, 151 N. W. 912; Hopkins from the premises, by a shot fired by a v. Michigan Sugar Co. Mich. post, trespasser to whom he gives such order, 310, 150 N. W. 325; Anderson v. Balfour arises out of and in the course of his em- [1910] 2 I. R. 497, 44 Ir. Law Times, 168, ployment within the operation of a work-3 B. W. C. C. 588; Trim Joint Dist. School men's compensation act; at least, where he v. Kelly [1914] A. C. 667, 83 L. J. P. C. has received special instructions from a superior to order out the trespasser in ques-N. S. 305, 48 Ir. Law Times, 141, 58 Sol. N. S. 220, 30 Times L. R. 452, 111 L. T. tion and call the police to his assistance. For other cases, see Master and Servant, II. a, in Dig. 1-52 N. S. A (October 18, 1915.) Jo. 493, 7 B. W. C. C. 274; Manson v. Forth & C. S. S. Co. [1913] S. C. 921, 50 Scot. L. R. 687, 6 B. W. C. C. 830; Shaw v. Macfarlane, 52 Scot. L. R. 236, 8 B. W. C. C. 382; Bett v. Hughes, 52 Scot. L. R. PPEAL by the insurer from a decree of 93, 8 B. W. C. C. 362; Milwaukee v. Inthe Superior Court for Worcester Coun- dustrial Commission, 160 Wis. 238, 151 ty in petitioner's favor upon a finding of N. W. 247; Brightman's Case, 220 Mass. the Industrial Accident Board affirming a 17, post, 321, 107 N. E. 527, 8 N. C. C. A. finding of the Committee of Arbitration in 102; Sponatski's Case, 220 Mass. 526, post, a proceeding by petitioner under the work-333, 108 N. E. 466, 8 N. C. C. A. 1025; Blair men's compensation act to recover compensation for the death of her husband. Affirmed. The facts are stated in the opinion. Messrs. Charles C. Milton and Frank L. Riley for appellant. Messrs. Thayer, Drury, & Walker, for appellee: The industrial accident board was war & Co. v. Chilton [1915] W. N. 203, 84 L. J. K. B. N. S. 1147, [1915] W. C. & Ins. Rep. 283, 31 Times L. R. 437, 8 B. W. C. C. 324; Nisbet v. Rayne [1910] 2 K. B. 689, 80 L. J. K. B. N. S. 84, 103 L. T. N. S. 178, 26 Times L. R. 632, 54 Sol. Jo. 719, 3 B. W. C. C. 507; Challis v. London & S. W. R. Co. [1905] 2 K. B. 154, 74 L. J. K. B. ranted in finding that the injury to Reithel. S. 569, 53 Week. Rep. 613, 93 L. T. N. arose out of his employment. MeNicol's Case, 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; Craske v. Wigan [1909] 2 K. B. 635, 78 L. J. K. B. N. S. 994, 100 L. T. N. S. 8, 25 Times L. R. 632, 2 B. W. C. C. 35; Barnes v. Nunnery Colliery Co. [1910] W. N. 248, 45 L. J. N. C. 757, 4 B. W. C. C. 43; S. 330, 21 Times L. R. 486; Thorn v. Humm [1915] W. C. & Ins. Rep. 224, 112 L. T. N. S. 888, 31 Times L. R. 194, 8 B. W. C. C. 190. people to leave the mill. One Bombard, sion was of sufficient importance to form entered the premises of the subscriber with the subject of a report by the superinout permission in June, 1914, interviewed tendent to his superior, the manager of the and annoyed an employee named Mrs. King, factory. In view of these circumstances, and created a disturbance. Reithel as su- the employee was given a special direction perintendent ordered him to leave, and he respecting Bombard. His duty was defined did as directed. This occurrence was re- in this particular. He was to be ordered ported to the manager of the mill, who out, and the police were to be summoned instructed Reithel, if Bombard again ap- if he did not go. Commonly such precaupeared on the premises to order him out, tions are not taken nor such directions and if he did not go, to send for the police given respecting the ordinary trespasser. authorities. The finding of the industrial They indicate that the employer and emaccident board proceeds as follows: "Bom- ployee realized that they were dealing with bard appeared again on July 9, 1914, hav- a maker of trouble who was or might be ing a revolver in his possession, and engaged generally lawless in his conduct, and who Mrs. King in conversation. He finally must be treated accordingly for the sethreatened Mrs. King with the revolver and curity of property and the safety of emshe sent another employee, Provost, to the ployees and others who might be upon the superintendent with a request that Bom- premises. The liability to whatever perbard be ordered from the premises. In this sonal injury might be likely to arise in connection, the evidence shows that a dealing with such a person was therefore daughter of the superintending employee within the contemplation of the employer also informed him that Bombard had a and employee in establishing the boundarevolver and was going to shoot Mrs. King. ries of the latter's duty. That became a risk 'For God's sake, go and tend to that man,' of the employment. It is not usual for she urged. The superintendent thereupon people with whom a mill superintendent walked towards Bombard, made a motion comes in contact to commit crime. Conduct towards the door, directing him to go out. of that sort is not to be presumed nor comBombard immediately discharged the re- monly expected. Danger of being assaulted volver at the superintendent, fatally injur- is not the usual concomitant of work. But ing him, and afterwards shot at the em- when a special duty arises to deal with one ployee's daughter and Mrs. King. who is a trespasser, an annoyer of a woman employee, and a creator of disturbance, then a corresponding special risk of personal violence arises. That duty and that risk then become correlative. It hardly can be said as matter of law, under these circumstances, that danger of assault from such a creator of disturbance as Bombard was not incidental to the doing of that which Reithel's contract of employment required of him. An element inherent in the performance of the duty of excluding trespassers from property and mischiefmakers from the company of employees is that there may be some degree of violence encountered. Those required to deal with lawless persons may be treated with lawlessness. The precise form which that risk may take is not of consequence. expectedness and gravity are not the test. Sponatski's Case, 220 Mass. 526, post, 333, That 108 N. E. 466, 8 N. C. C. A. 1025. murder resulted instead of a broken bone is of slight, if, indeed, it is of any, significance. This injury was one to which the employee was exposed by reason of his employment, and, but for the special duty imposed on him respecting Bombard, he would not have been in the way of receiving it. This finding presents a case of wholly unprovoked murder. The question is whether this personal injury was one "arising out of and in the course of" the employment of Reithel. Plainly it arose in the course of his employment. It came upon him while he was doing his duty in the place and manner required by his contract of hire. The only point of difficulty is whether it also arose out of the employment. The Industrial Accident Board has found that it did. The facts are not in dispute. The question to be decided is whether as matter of law this finding was erroneous. a mill. The employee was the superintendent of It was a part, of his general duty to order trespassers from the premises. In this respect he was required to deal with those more or less heedless of the rights of others in their conduct. Superimposed upon this general obligation resting on him by reason of his contract of employment was a special one respecting Bombard. It came into existence because Bombard on some occasion within a few weeks before the event in question had been upon the premises of the employer. He had come as a trespasser, he had annoyed a woman employee, and he had created a disturbance. It thus had appeared that he was a disorderly person. His conduct on that occa Its un The causative danger was peculiar to his work. It was incidental to the character of the employment, and not independ ent of the relation of master and servant. Although unforeseen, and the consequence | 58 Sol. Jo. 493; Nisbet v. Rayne [1910] of what on this record appears to have 2 K. B. 689, 80 L. J. K. B. N. S. 84, 103 been a crime of the highest magnitude, yet now, after the event, it appears to have had its origin in a hazard connected with the employment, and to have flowed from that source as a rational consequence. Tried by the test suggested in McNicol's Case, 215 Mass. 497, 499, infra, 306, 102 N. E. 697, 4 N. C. C. A. 522, the injury seems to have arisen in the course of the employment. Under our workmen's compensation act it is not required that the injury be also an accident, differing in this respect from the English act, and being more liberal to the employee. But even under the English act, in the present case the dependent would be awarded compensation. Trim Joint Dist. School v. Kelly [1914] A. C. 667, 83 L. J. P. C. N. S. 220, 30 Times L. R. 452, 111 L. T. N. S. 305, 48 Ir. Law Times 141, L. T. N. S. 178, 26 Times L. R. 632, 54 Sol. MASSACHUSETTS SUPREME JUDI- Same - decree - form RE ANNIE MCNICOL et al. RE EMPLOYERS' LIABILITY ASSUR- (215 Mass. 497, 102 N. E. 697.) Master and servant pensation act servant. et workmen's comassault by fellow 3. The court must exercise its own judgment as to the kind of decree to be entered under a workmen's compensation act which provides that, when copies of the decisions therewith have been transmitted to the of the Board and all papers in connection court, it shall render a decree in accordance therewith. A (September 12, 1913.) PPEAL by insurers from a decree of the Superior Court for Suffolk County 1. Injury to an employee while he is performing the duties assigned to him, by providing for equal payments to the widow assault by a fellow servant who is permit- and minor daughter of deceased from a fund ted to continue his service while intoxicat- recovered in a proceeding under a workmen's ed, in which condition he is, to the knowl-compensation act for his death. Reversed. edge of the employer, quarrelsome and dangerous, arises "out of and in the course of" the employment, within the meaning of a workmen's compensation act. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. Same widow and child right to share in recovery. 2. In the absence of evidence to show the dependency of a minor child, it will not share with its mother in the fund recovered under a workmen's compensation act for the death of the husband and father, which provides that a wife shall be conclusively presumed to be wholly dependent upon a deceased husband, and that a like presump tion exists in favor of a child under the age of eighteen years, like "there being no surviving dependent parent.” The facts are stated in the opinion. Messrs. Sawyer, Hardy, & Stone for appellant insurer. Mr. Albert S. Apsey, for dependents: The injuries and death of this employee can be classed as "arising out of and in the course of his employment." Clover, C. & Co. v. Hughes [1910] A. C. 242, 26 Times L. R. 359, 79 L. J. K. B. N. S. 470, 102 L. T. N. S. 340, 54 Sol. Jo. 375, 3 B. W. C. C. 275, 47 Scot. L. R. 885; Craske v. Wigan [1909] 2 K. B. 635, 78 L. J. K. B. N. S. 994, 101 L. T. N. S. 6, 25 Times L. R. 632, 53 Sol. Jo. 560; Andrew v. Failsworth Industrial Soc. [1904] 2 K. B. 32, 73 L. J. K. B. N. S. 511, 68 J. P. 409, 52 Week. Rep. 451, 90 L. T. N. S. 611, 20 Times L. R. 429; Rowland v. Wright [1909] 1 K. B. 963, 77 L. J. K. B. N. S. 1071, 99 L. T. N. S. 758, 24 Times L. R. 852; Challis v. London & S. W. R. Co. [1905] 2 K. B. 154, 74 L. J. K. B. N. S. 569, 53 Week. Rep. 613, 93 L. T. N. S. 330, 21 Times L. R. 486; Nisbet v. Rayne & Burn, 26 Times L. R. 632 Rugg, Ch. J., delivered the opinion of the court: This is a proceeding under Stat. 1911, chap. 751, as amended by Stat. 1912, chap. 571, known as the workmen's compensation act, by dependent relatives for compensation for the death of Stuart McNicol. 1. The first question is whether the deceased received an "injury arising out of and in the course of his employment," within the meaning of those words in part 2, § 1, of the act. In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. [1910] 2 K. B., tion act, and doubtless came thence into our 103 L. T. N. S. act. Therefore decisions of English courts before the adoption of our act are entitled to weight. Ryalls v. Mechanics' Mills, 150 Mass. 190, 5 L.R.A. 667, 22 N. E. 766, 15 Am. Neg. Cas. 552. It there had been held that injuries received from alighting on a high and unusually exposed scaffold (Andrew v. Failsworth Industrial Soc. [1904] 2 K. B. 32, 73 L. J. K. B. N. S. 511, 68 J. P. 409, 42 Week. Rep. 451, 90 L. T. N. S. 611, 20 Times L. R. 429), from the bite of a cat habitually kept in the place of employment (Rowland v. Wright [1909] 1 K. B. 963, 77 L. J. K. B. N. S. 1071, 99 L. T. N. S. 758, 24 Times L. R. 852), from a stone thrown by a boy from the top of a bridge at a locomotive passing underneath (Challis v. London & S. W. R. Co. [1905] 2 K. B. 154, 74 L. J. K. B. N. S. 569, 53 Week. Rep. 613, 93 L. T. N. S. 330, 21 Times L. R. 486), and from an attack upon а cashier traveling with a large sum of money (Nisbet v. Rayne & Burn [1910] 2 K. B. 689, 80 L. J. K. B. N. S. 84, 103 L. T. N. S. 178, 26 Times L. R. 632, 54 Sol. Jo. 719, 3 B. W. C. C. 507), all arose in the course and out of the employment, while the contrary had been held as to injuries resulting from a piece of iron thrown in anger by a boy in the same service (Armitage v. Lancashire & Y. R. Co. [1902] 2 K. B. 178, 71 L. J. K. B. N. S. 778, 66 J. P. 613, 86 L. T. N. S. 883, 18 Times L. R. 648), from fright at the incursion of an insect into the room (Craske v. Wigan [1909] 2 K. B. 635, 78 L. J. K. B. N. S. 994, 101 L. T. N. S. 6, 25 Times L. R. 632, 53 Sol. Jo. 560), and from a felonious assault of the employer (Blake v. Head, 106 L. T. N. S. 822, 28 Times L. R. 321, 5 B. W. C. C. 303). It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act, and with precision exclude those outside its terms. It is sufficient to say that an injury is received "in the course of" the employment when it come while the workman is doing the duty which he is 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 fairly be 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. The definition formulated above, when referred to the facts of these cases, reaches results in accord with their conclusions. Applying it to the facts of the present case, it seems plain that the injury of the deceased arose "out of and in the course of his employment." The findings of the Industrial Accident Board in substance are that Stuart McNicol, while in the performance of his duty at the Hoosac Tunnel Docks as a checker in the employ of a firm of importers, was injured and died as a result of "blows or kicks administered to him by [Timothy] McCarthy," who was in "an intoxicated frenzy and passion." McCarthy was a fellow workman who "was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employees, all of which was The exact words to be interpreted are known to the superintendent Matthews," found in the English workmen's compensa- who knowingly permitted him in such con |