from the second car. Vogt replied that he did not feel like it. Stillwagon began swearing at Vogt, and invited Vogt out of the car, evidently for the purpose of fighting it out. Vogt started to leave the car, when he was assaulted by Stillwagon. Vogt struck back with his fist, delivering a blow which resulted in the death of Stillwagon. There is no conflict in the evidence; three eyewitnesses, including Vogt, testify to the circumstances, and all agree, not only that Stillwagon opened the quarrel, but that he struck Vogt before the latter had made any demonstration of fight, other than to leave the car.

To call this an accident "arising out of and in course of employment" requires some stretch of definition. Stillwagon does not appear to have had any authority over Vogt; indeed, the evidence is that Vogt had two tickets for the unloading of the cars, while Stillwagon had but one. Stillwagon's employment was that of a chaffeur, with the incidental duty of helping to load the truck, and he initiated a quarrel with Vogt, and then left all of his legitimate work for the purpose of committing an assault upon Vogt. He was not employed as a fighter; his work was driving the truck and helping to load it, and there is not a suggestion that any interest of the master was involved in this assault. Vogt was not interfering with any work of the employer; he appears to have had a perfect right to be where he was, and to have been there prior to Stillwagon, and to have been engaged in the work for which he was employed. It was Vogt who had the card for the unloading of this third car, and, while it is probably true that Stillwagon had a right to work upon this same car, he had no duty there, under his employment, except to get his load of brick and go away.

Stillwagon's compensation did not depend on the number of loads he drew; he was working by the day, and there is nothing in the evidence which suggests that Vogt was interfering with anything which Stillwagon was bound to do for the employer. All there was of it, Stillwagon picked up a quarrel with Vogt, and then left his occupation as a chauffeur for the purpose of carrying out his desire to punish Vogt for some real or imaginary grievance, in no wise affecting the interests of the employer. The fight which ensued had none of the elements of an accident about it. It was initiated and invited by Stillwagon, not for any purpose of the master, but to gratify his own personal desires, and the fact that it occurred during the hours when his services belonged to the employer does not give it the character of having been done in the course of that employment. If Stillwagon had left his employment for the purpose of assaulting some person not in the employ of Callan Bros., no one would seriously contend that the master could be held liable for the injury, for he had not employed Stillwagon for any such purpose, and did not encourage or suggest the assault, and, in the absence of serving some purpose of the master, we are unable to discover

any reason for holding that the insurance carriers in the present instance are in any wise liable to the claimant.

It seems to use entirely clear that this case comes squarely within the exception found in section 10 of the Workmen's Compensation Law. It is there provided that compensation shall be paid without regard to fault as a cause of such injury, "except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or another," etc. Obviously Stillwagon's injury was "occasioned by the willful intention of the injured employee to bring about the injury" of Vogt; he intiated the quarrel, and he struck the first blow; and, in the natural course of events, he was injured himself. It is highly probable that Vogt did not intend the result of his blow; he had no time to deliberate upon that; he was assaulted and retaliated; and Stillwagon was killed, not as the result of an accident, but as the culmination of a fight which he had started.

The case of Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344, relied upon by the respondent, was concededly a close case, and was justified upon the proposition that it was the duty of the claimant to take care of the horses with which he was intrusted, and to see that they were not injured by injudicious wetting or otherwise by a fellow employee, and that, where a quarrel arose over the act of an employee in improperly wetting the horses, and an injury resulted from the personal encounter which ensued, the accident arose out of and in the course of the employment. Here no such facts are involved; there was no effort to show that any possible interest of the master could be served by Stillwagon committing an assault upon Vogt. In matter of Heitz, supra, the court say: "The words 'arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both 'out of' and 'in the course of' employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work."

Tried by this test, the claimant's case is not within the statute. Stillwagon was not doing the duty he was employed to perform when he left his work for the purpose of assaulting Vogt, nor was the injury a natural incident of the work which he was required to perform. The injury resulted solely because Stillwagon, in serving his own purpose, willfully sought to injure Vogt, and the statute has specially excepted such injuries from its operation. The award should be reversed. All concur, except

JOHN M KELLOGG, P. J. (dissenting). Vogt and Stillwagon were removing brick from three railroad cars by automobile

trucks. Stillwagon had unloaded his car. There was another truck load remaining in the car that Vogt was unloading. Arriving at the cars, Vogt, instead of going to the car he had been unloading, went to the remaining car, which neither of them had worked upon. Stillwagon claimed that Vogt should finish his Own car, as the work was more difficult, and until then should not remove brick from the third car. They were both in the third car, and were disputing about who was entitled to load first, and somehow, as a result of that dispute, the parties came to blows and the accident happened.

We quote from Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344:

"Altercations and blows may, however, arise from the act of a fellow servant while both are engaged in the employer's work and in relation to the employment. The employer may be badly or careslessly served by two men engaged in his work, and yet it may be inferred, when one injures the other in a quarrel over the manner of working together in a common employment, that the accident arose out of the employment and was not entirely Outside of its scope, if it was connected with the employer's work and in a sense in his interest."

I favor an affirmance.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT,

TWONKO

ย.

ROME BRASS & COPPER CO. ET AL.

IN RE AMERICAN MUT. COMPENSATION INS. CO.*

1. MASTER AND SERVANT - WORKMEN'S COMPENSATION -NOTICE OF CLAIM-FAILURE TO SERVE.

Where employer within two months of the accident acquired information concerning the same, which was fully as illuminating as any information he might have received had notice of claim been served, he was not prejudiced.

(For other cases, see Master and Servant, Dec. Dig. § 398.) COMPENSATION

2. MASTER AND SERVANT - WORKMEN'S -FAILURE TO FILE CLAIM-ESTOPPEL. Proof that claimant, while in the hospital and within one year, was approached by an agent of the employer having in charge the report of accident cases to the commission and carrier, and was induced by him to make a written statement concerning the accident, which set forth

* Decision rendered, May 17, 1918 170 N. Y. Supp. 682.

sufficient facts to constitute a formal claim, that claimant was told by the agent that the statement was a notice of claim for compensation, that through it claimant was to get money from the insurer, and that claimant believed such fact, together with proof as to the treatment of claimant by physicians in the hospital at expense of the insurer, was sufficient to justify the commission in holding that employer and insurer were estopped to set up as a bar failure of claimant to file a claim for compensation within one year.

(For other cases, see Master and Servant, Dec. Dig. § 398.)

Cochrane, J., dissenting in part.

Appeal from State Industrial Commission.

Proceeding before State Industrial Commission in the matter of the claim of Frank Twonko, now deceased, for compensation under the Workmen's Compensation Law against the Rome Brass & Copper Company, employer, and the American Mutual Compensation Insurance Company, insurance carrier. From an award of the Commission, the employer and insurance carrier appeal. Award affirmed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Jeremiah F. Connor, of New York City, for appellant insurance

carrier.

Briggs & Evans, of Rome, for appellant employer.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, for State Industrial Commission.

Michael J. Larkin, of Rome, for respondent.

HENRY T. KELLOGG, J. The claimant caught his foot in a hole in a concrete floor while at work in the plant of his employer, and sprained his ankle. He continued to work throughout July 20, 1914, the day of the accident, and worked the following day. He then remained away from work until August 21, 1914, when he returned, worked for three days, and thereafter, leaving the employment, never worked again. He was confined to a hospital from September 23, 1914, to January 1, 1915. Infection had set in as a result of the accident, and the ankle bones had become diseased. When he left the hospital the ankle was stiff and useless. He failed to give a notice of claim to his employer within ten days after disability, and neglected to file a claim for compensation within a year. Nevertheless the commission found an award, and this appeal was taken.

The claimant informed his immediate foreman of the facts of the accident on the day that it occurred, and within two or three days thereafter exhibited his injured leg to an upper foreman or "bigger boss." About two months after the accident he told physicians at the hospital, where he was confined, how the accident occurred, and they reported to the employer and insurance carrier. Thereafter the services of these physicians were paid for by the insurance carrier. On September 26, 1914, or sixty-six days after the accident, the employer made written report

of the accident to the carrier. This report contained the following statement:

"Date of the accident: Twentieth day of July, 1914. Did accident happen on premises? Yes. At the plant? Yes. Away from plant of employer? No. Was employee injured in the course of employment? Yes."

It also contained the following:

"Describe in full how the accident occurred. Turned his ankle over. Worked balance of day and the following day, then stayed out until August 10, when he came back and worked for three days only. Has been out ever since. State nature and extent of injury. Doctor reports that he cannot tell at this time, as ankle is so swollen."

[1] The service of a notice of claim furnishes an employer with an opportunity to make immediate investigation before witnesses have dispersed, and while they may still remember the facts of an accident. If otherwise than through an investigation prompted by the service of a notice, the employer has knowledge of the facts, a failure to serve a notice is not prejudicial, no matter at how late a date the knowledge is acquired. In this case we find that within two months of the accident the employer, without qualification, asserted entire knowledge as to the manner of its occurrence and the injury inflicted. It was a just inference from this proof that the employer, through the agency of the foremen or otherwise, did actually acquire information concerning the accident which was fully as illuminating as any information he might have received had the notice been served. Moreover, the employer, in his statement made as upon knowledge, asserted facts in relation to the accident which exactly correspond to the facts as alleged in the statement of claimant. Since the employer did have perfect knowledge of the facts of the case, as clearly asserted by him, it is not material whether or not the acquisition of such knowledge had been rendered difficult by the lack of service of a written notice. Clearly, therefore, the employer was not prejudiced.

[2] It is true that the claimant did not file his claim until more than one year after the accident. The evidence shows, however, that the claimant, while in the hospital, was approached on October 20, 1914, by an agent of the employer having in charge the report of accident cases to the commission and the carrier, and was induced by him to make a written statement concerning the accident, which set forth sufficient facts to constitute a formal claim; that the claimant was told by this agent that the statement was a notice of claim for compensation, that through it he was to get money from the insurer, and that claimant believed such to be the fact. This proof, together with the proof as to the treatment of the claimant by the physicians in the hospital at the expense of the insurer, was sufficient to justify the commission in its holding that the employer and insurer were estopped