Argued before Boyd, C. J., and Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge, and Constable, JJ.

Garner W. Denmead, of Baltimore (S. W. Gambrill, of Baltimore, on the brief), for appellant.

Eugene O'Dunne and Donald B. Creecy, both of Baltimore, for appellee.

CONSTABLE, J. Howard F. Tolson, the appellee herein, was in the employ of the Coastwise Shipbuilding Company as a laborer at its yards in Baltimore city. On the 22d day of July, 1916, he was assisting in removing old piling for a foundation. While engaged in this work, he attempted to remove an old broken piece of piling, five or six feet in length and a foot square, which was almost completely covered with barnacles and imbedded in the sand. In order to do this he put his hand under it and received a wound upon the inside of his fourth, or little, finger, the sensation from which resembled that produced by the sting of an insect, or such as would be occasioned by any sharp substance piercing the flesh and being withdrawn. There was no swelling of the finger until two days after the 'injury, when it began to swell and developed into blood poisoning. He was removed to the University Hospital, where he was confined for about six weeks. Within proper time he filed a claim for compensation with the State Accident Industrial Commission. The commission, after complying with all of the formalities required by the provisions of chapter 800 of the Acts of Assembly of 1914 and the amendments thereto, the act creating and defining the powers and duties of the commission, held that the blood poisoning and the subsequent results were the natural results of an accidental personal injury sustained by an employee arising out of and in the course of his employment, and passed an order, by which his employer and the insurer were to pay him compensation at the rate of $6 a week during the continuance of his disability, according to the provisions of section 35 of the act. From that order an appeal was taken to the court of common pleas of Baltimore city. The case was there heard before the court sitting as a jury, and the decision of the commission was confirmed, and it is from the judgment therein entered this appeal has been taken.

[1] There is but one exception in the record, and that relates to the ruling upon the prayers. The two prayers offered by the appellee were refused. The first prayer of the appellant was refused as offered, but was granted as amended by the court. As offered, it sought to have the court rule that, in cases arising under the Compensation Act, the burden of proof is upon the employee to show that he sustained an accidental personal injury, arising out of and in the course of his employment; and, unless the employee so proves, compensation cannot be awarded him. The court amended this prayer by adding thereto the following:

"But in court proceedings, upon an appeal from a decision of the commission, the decision is to be held prima facie correct, and the burden of proof is upon the party attacking it."

The prayer as offered is entirely silent as to whether the placing of the burden of proof, referred to the trial before the commission or to that before the court on appeal. It is only natural that it should have been intended to refer to the proceeding then before the court. If, however, it was intended to refer to the hearing before the commission it was misleading in the extreme, for it could have been taken as referring to both trials. If that was the object sought to be effected then it would have been an erroneous instruction, for by section 55 of the act it is expressly provided that:

On appeal "the decision of the commission shall be prima facie correct, and the burden of proof shall be upon the party attacking the same."

This provision has been passed upon and held to be literally taken as expressed, in three cases in this court: Frazier v. Leas, 127 Md. 573, 96 Atl. 764; American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Cas. 1917D, 33; and Jewel Tea Co. v. Weber, 103 Atl. 476, decided at this term. It must upon these decisions be held that the court was correct in refusing the first prayer as offered, and the amended prayer correctly stated the law.

[2] The second and third prayers can be treated together. The appellant sought to have the court rule as a matter of law "that there was no evidence legally sufficient to prove that the appellee sustained an accidental personal injury, arising out of and in the course of his employment, and therefore the award of compensation must be set aside," and in the third prayer to rule as a matter of law "that the evidence in this case shows the injury to the appelee was occasioned by the sting of the wasp or insect of similar character, and that such an injury is not an accidental personal injury arising out of and in the course of his employment, and therefore the award must be set aside and amended." The very question presented by these prayers has been so very recently passed upon by this court in the case of the Jewel Tea Co. v. Weber, supra, that a repetition of what we there said, Judge Thomas speaking for us, is all that should be said:

"As the case was tried by a jury, with the burden on the appellant to show that the decision of the commission was incorrect, it was for the jury to determine the questions of fact presented by the appeal, and among them, the question whether the injury sustained by the deceased arose out of and in the course of his employment by the appellant, and the court was not authorized to say that the appellant had met the burden imposed on it, or to assume a fact to be found by the jury. In the case of Western Md. R. Co. v. Kehoe, 86 Md. 54 [37 Atl. 799], the court said: "The court cannot decide between opposing wit

nesses. The jury must determine questions of fact, and, as said in Charleston Insurance Co. v. Corner, 2 Gill, 427: "No action of the court should control the exercise of their admitted right to weigh the credibility of evidence." In B. & O. R. Co. v. Hendricks, 104 Md. 76 [64 Atl. 304], Chief Judge McSherry said: "There is no principle better established than that which denies to the court the right of assuming any fact, in aid of a prayer, when the onus of proving such fact rests upon the party asking the instruction, no matter how strong and convincing his proof on the subject may be.' In the case of Calvert Bank v. Katz, 102 Md. 56 [61 Atl. 411] Judge Jones speaking for the court, said: 'Doubtless, the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy the jury, or the circumstances that it was all on one side, does authorize the court to direct the jury that it proves the fact and in the case of Lemp Brewing Co. v. Mantz, 120 Md. 176 [87 Atl. 814], the court said: 'With that burden on the plaintiff, the claimant, the case at bar could not, at the instance of the plaintiff, have been withdrawn from the jury, for although the evidence adduced by the plaintiff was practically uncontradicted, the rule in this state is that the court cannot assume the existence of facts and take away from the jury the finding of the same.' The settled rule in such cases as to the burden of proof, and the established principle applicable to withdrawing a case from the jury, required the jury to decide the questions of fact presented by the appeal in this case, and the court below properly refused to grant the first, second, and third prayers of the appellant."

The fact that we were there dealing with a case which was tried with the aid of a jury, and in the case at bar was tried without the aid of a jury, causes no difference in the principles above announced. It has long been established that, in trying a case before the court, sitting as a court and jury, the same rule of law is applicable to the prayers, upon the question of their rejection, as would be if the case were being tried before a jury. Lyon v. George, 44 Md. 295; Hobbs v. Batory, 86 Md. 68, 37 Atl. 713.

It is clear the questions of fact involved in these prayers should have been presented in prayers for the court to find as facts, and therefore the ruling was correct on these prayers. Judgment affirmed, with costs to the appellee.

SUPREME COURT OF MINNESOTA.

STATE EX REL. H. S. JOHNSON SASH & DOOR CO.

V.

DISTRICT COURT, HENNEPIN COUNTY, ET AL. (No. 20882.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -INJURY "ARISING OUT OF EMPLOYMENT”—EVIDENCE. An employee working in the relator's factory was hit and injured by a missile thrown by a fellow worker. The court found that it was customary for some of the workmen to throw at one another and at others, that the relator knew of the custom or should have known of it in the exercise of diligence, that the injured employee was at the time engaged in his work, and that he did not then and had not at any time engaged with his fellow worker in sport of such kind. There was evidence that the employee had never engaged with any of the employees in such sport and that he had complained to the relator of the acts of his coworker. It is held that the ultimate finding that the injury arose out of the employment within the meaning of the Workmen's Compensation Act is sustained.

(For other cases, see Master and Servant, Dec. Dig. § 405 [4].)

Certiorari to District Court, Hennepin County; Wm. C. Leary,

Judge.

Original writ of certiorari in Supreme Court by the State, on the relation of the H. S. Johnson Sash & Door Company, to review a judgment of the District Court, Hennepin County, and others, awarding compensation under the Workmen's Compensation Act to William Filas, an employee of the relator. Judgment affirmed.

John A. Nordin, of Minneapolis, for relator.
Larrabee & Olson, of Minneapolis, for respondents.

DIBBEL., C. Certiorari to the district court of Hennepin to review its judgment awarding compensation under the Workmen's Compensation Act to William Filas, an employee of the relator H. Š. Johnson Company.

The relator company operates a woodworking factory. Filas was employed by it. The court finds that some of the employees of the relator, referred to in the evidence as boys or kids, were accustomed during working hours to throw missiles such as blocks of wood and sash pins at one another and at others including Filas; that the relator knew of the custom or should have known of it in the exercise of diligence; that on May 31, 1917, a fellow employee of Filas threw a sash pin at him in sport and without intending to injure him; that it hit him in the eye and destroyed his vision; that Filas was at the time engaged in his work; and that he did not then and had not at any time engaged with his

Decision rendered, April 12, 1918. 167 N. W. Rep 283. Syllabus by the Court.

fellow employee in sport of this kind. These findings are sustained. Filas claims that he at no time engaged with his fellow employees in throwing missiles and that he complained to the company of the acts of the particular employee. No specific findings are made upon these points. The court finds that the accident arose out of Filas' employment. Whether it did is the only question.

The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act resulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. 1 Honnold, Work. Comp. § 121; Bradbury, Work. Comp. 649; Dosker, Comp. Law, § 106; Boyd, Work. Comp. § 476; note, 12 N. C. C. A. 789; note, L. R. A. 1916A, 23, 47-93; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215; Federal, etc., Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968; Pierce v. Boyer-Van Kuran, etc., Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970; De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761; Armitage v. L. & Y. Ry. Co., [1902] 2 K. B. 178; Fitzgerald v. Clark, [1908] 2 K. B. 796. Here we conceive the situation to be different. Filas was exposed by his employment to the risk of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile throwing proclivities of some of Filas' fellow workers and was a risk of the work as it was conducted. In McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, injuries resulting from blows administered in frenzy by an intoxicated fellow worker known by the employer to be in the habit of becoming intoxicated and in that condition to be dangerous were held to arise out of the employment. Liability was rested "upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work." In Clayton v. Hardwick Colliery Co., 9 B. W. C. C. 136, reversing 7 B. W. C. C. 643, a finding that a boy who was working with other boys in a colliery picking stones from coal and was injured by a stone thrown by another boy was so subjected by his employment to a special risk that the injury arose out of his employment was sustained. In Challis v. London, etc., Co., [1905] 2 K. B. 154, the injuries to an engineer who was driving his engine under a bridge and was hit by a stone thrown by a boy from the bridge were held to arise out of his employment. And see Pekin Cooperage Co. v. Industrial