dition to continue at work during the day of the fatality, which occurred in the afternoon. The injury came while the deceased was doing the work for which he was hired. It was due to the act of an obviously intoxicated fellow workman, whose quarrelsome disposition and inebriate condition were all well known to the foreman of the employer. A natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his companion. The case at bar is quite distinguishable from a stabbing by a drunken stranger, a felonious attack by a sober fellow workman, or even rough sport or horseplay by companions who might have been expected to be at work. Although it may be that upon the facts here disclosed a liability on the part of the employer for negligence at common law or under the employers' liability act might have arisen, this decision does not rest upon that ground, but upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work. A fall from a quay by a sailor while returning from shore leave (Kitchenham v. The Johannesburg [1911] 1 K. B. 523, 80 L. J. K. B. N. S. 313, 103 L. T. N. S. 778, 27 Times L. R. 124, 55 Sol. Jo. 124, 4 B. W. C. C. 91, s. c. [1911] A. C. 417, 80 L. J. K. B. N. S. 1102, 105 L. T. N. S. 118, 27 Times L. R. 504, 55 Sol. Jo. 599, 4 B. W. C. C. 311), a sting from a wasp (Amys v. Barton [1912] 1 K. B. 40, 81 L. J. K. B. N. S. 65, 105 L. T. N. S. 619, 28 Times L. R. 29, 5 B. W. C. C. 117), and a frost bite (Warner v. Couchman [1912] A. C. 35, 81 L. J. K. B. N. S. 45, 105 L. T. N. S. 676, 28 Times L. R. 58, 56 Sol. Jo. 70, 5 B. W. C. C. 177, 49 Scot. L. R. 681), all have been held to be injuries not "arising out of" the employment. But we find nothing in any of them in conflict with our present conclusion. Nor is there anything at variance with it in Mitchinson v. Day Bros. [1913] 1 K. B. 603, 82.L. J. K. B. N. S. 421, 108 L. T. N. S. 193, 29 Times L. R. 267, 57 Sol. Jo. 300, 6 B. W. C. C. 190, where it was held that injuries resulting from an assault by a drunken stranger upon an employee engaged at his work on the highway did not arise out of the employment. That was a quite different situation from the one now before us.

2. It is necessary to determine the persons to whom the payments provided for in the act shall be made. It may be assumed from this record that no personal representative of the deceased has been appointed. He left a widow and a minor daughter presumably under the age of eighteen years. Part 2, § 7, provides that a

wife conclusively shall be presumed to be wholly dependent upon a deceased husband, while a like presumption exists in favor of "a child or children under the age of eighteen years . upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent." The natural meaning of this sentence is that the conclusive presumption of dependency of children is conditioned upon the nonexistence of a surviving dependent parent. There are no other words in this or other sections of the act which control its plain significance. The use of the plural word "dependents" in several places in §§ 6, and 8 in part 2 finds ample justification in the many conceivable instances where several persons may be entitled to share in the payments when there is no surviving husband or wife.

The provisions of Stat. 6 Edw. VII. chap. 58, § 13 as to the dependents entitled to our payments, are wholly different from those of our own act, and decisions of the English courts have no bearing or the case at bar.

3. The act does not contemplate the allowance of bills of exceptions, and that presented in the case at bar must be dismissed. The case is properly here on appeal. Gould's Case, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60.

4. There is error in the decree. In the decree entered in the superior court the ruling of the board of arbitration was followed, providing that the payments should be divided equally between the widow and the dependent minor daughter, rather than that of the Industrial Accident Board, that the widow alone was entitled to the payments. This was not in accordance with the act, as has been pointed out. Apparently the judge of the superior court exercised his own judg ment as to the kind of decree which the law required upon the facts found. This is correct. Part 3, § 11, of the act, as amended by Stat. 1912, chap. 571, § 14, provides that when copies of the "decision of the Board and all papers in connection therewith" have been transmitted to the superior court, "said court shall render a decree in accordance therewith." This means such a decree as the law requires upon the facts found by the Board. It does not make the action of the superior court a mere perfunctory registration of approval of the conclusions of law reached by the Industrial Accident Board. The section in question doubtless was enacted because of the intimation in the Opinion of Justices, 209 Mass. 607. 612, 96 N. E. 308, 1 N. C. C. A. 557, to the effect that the decisions of the Board must be enforced by appropriate proceed

ings in court. The obligation placed upon the superior court by the requirement to enter a decree in accordance with the decision is to exercise its judicial function by entering such decree as will enforce the

legal rights of the parties as disclosed by the facts appearing on the record.

It follows that the decree must be reversed and a new decree entered as required by this opinion.

As to application and effect of workmen's compensation acts generally, see annotation, ante, 23.

v. Kelly [1914] A. C. (Eng.) 667, 111 L. T. N. S. 306, 30 Times L. R. 452, [1914] W. N. 177, 7 B. W. C. C. 274, 83 L. J. P. C. N. S. 220, 58 Sol. Jo. 493, 48 Ir. Law Times, 141 [1914] W. C. & Ins. Rep. 359, said that the Scotch court must have misinterpreted former decisions of the House of Lords, and that it is none the less an accident in the ordinary and popular sense in which the word is used because it is caused by personal violence.

The same view has been taken by the English court.

Thus, an assistant schoolmaster in an industrial school, who died from a fracture of the skull and other injuries, the result of an assault committed upon him by several boys in the school, in pursuance of a prearranged plan, suffers injury by accident. Kelly v. Trim Joint Dist. School [1913] W. C. & Ins. Rep. 401, 47 Ir. Law Times, 151, 6 B. W. C. C. 921, affirmed in [1914] A. C. (Eng.) 667, 111 L. T. N. S. 306, 30 Times L. R. 452, [1914] W. N. 177, 7 B. W. C. C. 274, 83 L. J. P. C. N. S. 220, 58 Sol. Jo. 493, 48 Ir. Law Times, 141, [1914] W. C. & Ins. Rep. 359.

And the murder of a cashier for the sake of robbery is an accident within the meaning of the statute. Nisbet v. Rayne [1910] 2 K. B. (Eng.) 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. A game keeper who is beaten by poachers suffers an injury by accident within the meaning of the act. Anderson v. Balfour [1910] 2 I. R. 497, 44 Ir. Law Times, 168, 3 B. W. C. C. 588.

The Scotch court, however, has held that an employee taking the place of .strikers, who was assaulted by the latter, is not injured by accident, since the word "accident," taken in its popular sense, excludes a case where the injury is wilfully inflicted by another person. Murray v. Denholm [1911] S. C. 1088, 48 Scot. L. R. 896, 5 B. W. C. C. 496. In discussing this decision, however, Viscount Haldane in Trim Joint Dist. School

course of the employment.

Where an assault is such as is likely to happen because of the very nature of the work being performed, it has been held to arise out of the employment. Trim Joint Dist. School v. Kelly [1914] A. C. (Eng.) 667, 111 L. T. N. S. 306, 30 Times: L. R. 452 [1914] W. N. 177, 83 L. J. P. C. N. S. 220, 58 Sol. Jo. 493, 48 Ir. Law Times, 141 [1914] W. C. & Ins. Rep. 359, 7 B. W. C. C. 274 (assistant schoolmaster in an industrial school, assaulted by sev-. eral boys of the school, in accordance with prearranged plan); Nisbet v. Rayne [1910] 2 K. B. (Eng.) 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, 3 N. C. C. A. 368 (cashier, traveling with a large sum of money, assaulted and. robbed); Weekes v. Stead [1914] W. N.. (Eng.) 263, 30 Times L. R. 586, 58 Sol.. Jo. 633, 137 L. T. Jo. 180 [1914] W. C.. & Ins. Rep. 434, 83 L. J. K. B. N. S.. 1542, 111 L. T. N. S. 693, 7 B. W. C. C.. 398, 6 N. C. C. A. 1010 (foreman of company employed in moving furniture assaulted by man to whom he had refused! work).

A section foreman in charge of a gang of fifteen or twenty section men, mostly Greeks, may be found to be acting in the scope of his employment in attempting to take a shovel away from one of the gang,. who, after he had been properly instructed, continued to do the work in the wrong manner, and who continued to hold the shovel after he had been told to drop it and get his time, and who, upon the foreman's attempting to take the shovel, committed an assault upon him.. Western

151 Pac. 398.

An iron moulder's helper, who, while working in a stooping position in close proximity to boxes of molten metal, was struck by an intoxicated stranger and fell and was burned by the metal, suffered injury by accident arising out of and in the course of his employment. Shaw v. Macfarlane (1914) 52 Scot. L. R. 236, 8 B. W. C. C. 382. Lord Dundas, in discussing the earlier Scotch case of Burley v. Baird [1908] S. C. 545, 45 Scot. L. R. 416, 1 B. W. C. C. 7, stated that the Lord Justice Clerk's opinion, so far as based upon the ground that an injury caused by the wilful and unjust act of a wrongdoer cannot be, in any sense, an accident, "cannot, looking to the subsequent march of judicial decisions, now be supported as sound law."

In one case it was held that although the injury was caused by a stone wilfully thrown by a boy, it might be said to be an "accident" from the standpoint of the one who suffered the injury. Challis v. London & S. W. R. Co. [1905] 2 K. B. (Eng.) 154, 74 L. J. K. B. N. S. 569, 53 Week. Rep. 613, 93 L. T. N. S. 330, 21 Times L. R. 486, 7 W. C. C. 23.

Generally, however, assaults are not to be considered as incident to the ordinary work performed by a workman.

Thus, no compensation was allowed where the workman was employed as a cook in a hotel, and a drunken customer came out of the barroom into the kitchen, and made a rush at the cook, who was

v. Berwick (1909) 43 Ir. Law Times, 126. So, an employee who goes to the rescue of his employer, who is being attacked by a gang of rowdies, and is stabbed to death, is not injured by an accident arising out of and in the course of his employment. Collins v. Collins (1907) 2 I. R. (Ir.) 104.

The risk of being assaulted by a drunken man is not in any way especially connected with or incident to employment as a carter. Mitchinson v. Day Bros. [1913] 1 K. B. (Eng.) 603, 82 L. J. K. B. N. S. 421, 108 L. T. N. S. 193, 29 Times L. R. 267, 57 Sol. Jo. 300, 6 B. W. C. C. 190. In two cases it has been held that no compensation is recoverable where one workman is injured by a stone thrown in anger by another workman. Armitage v. Lancashire & Y. R. Co. [1902] 2 K. B. (Eng.) 178, 71 L. J. K. B. N. S. 778, 66 J. P. 613, 86 L. T. N. S. 883, 18 Times L. R. 648; Claytum v. Hardwick Colliery Co. (1914) 7 B. W. C. C. (Eng.) 643.

An injury received by a workman while he himself was deliberately assaulting a fellow workman is not caused by accident arising out of and in the course of the employment. Shaw v. Wigan Coal & I. Co. (1909) 3 B. W. C. C. (Eng.) 81.

And an injury caused by an intentionally felonious assault by an employer upon the workman does not arise out of the employment. Blake v. Head [1912] W. C. Rep. (Eng.) 198, 106 L. T. N. S. 822, 28 Times L. R. 321, 5 B. W. C. C. 303. W. M. G.

out of his employment within the meaning of those words in a workmen's compensation act.

For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S.

(January 4, 1915.)

ERTIORARI to the Industrial Accident

Board to review an order affirming an award of the Arbitration Committee to claimant as compensation under the workmen's compensation act for the death of

her husband. Reversed.

The facts are stated in the opinion. Mr. M. J Cavanaugh, with Mr. Frank J. Riggs, for plaintiffs in certiorari:

Conceding, for the sake of argument, that the facts found by the board are supported by evidence and accepted as true, they are insufficient, as matter of law, to show that the injury of deceased arose in the course of his employment.