Gager, J.
The specific duties of the claimant, among others, were to drive trespassers and intruders off respondent’s property, and to protect the property generally. Mischievous boys, having no intention of damaging respondent’s property, and being on adjoining property, shot air-rifles upon respondent’s property, and the shots fell about the claimant. Partly to protect his person and partly to protect the glass in respondent’s building near which the claimant was working and which he apprehended might be injured, the claimant chased the boys away. Were the boys, when so shooting, trespassers or intruders or endangering respondent’s property? Though standing on adjoining land the boys, in shooting on to the respondent’s land, were trespassers, and the fair import of the finding is that claimant was justified in regarding the shooting as dangerous to respondent’s glass. The shooting was certainly dangerous to persons as the result showed.
This is a case of entry by the thing controlled. 38 Cyc. 996;
Whittaker
v.
Stangvick,
100 Minn. 386, 111 N. W. 295, 10 L. R. A. (N. S.)
921; McGhee
v.
Norfolk & Southern Ry. Co.,
147 N. Car. 142, 60 S. E. 912, 24 L. R. A. (N. S.) 119. In chasing the boys away, claimant was trying to put a stop to these trespasses and the danger to property consequent upon the shooting, and was acting strictly within the line of his employment. Had he then been hit while chasing the boys away, that hitting unquestionably would have arisen out of his employment. That the shooting was playful and not intended to do damage, can make no difference. In carrying out the employer’s orders claimant was not obliged first to ascertain whether the shooting was malicious or in fun. The trespass and the danger to the glass were the same in either case.
But the respondents urge that, granting all this, the accident did not occur while claimant was driving the boys away, that he had returned to the work he was doing before he drove them away, and was not actively protecting the property at the time he was injured. The finding shows that, having driven the boys away, he returned to his work and the boys also returned to them sport of shooting in his direction to induce him to chase them again. Whatever their intentions, they in fact renewed their trespassing and renewed the danger to person and property. The finding is not explicit, but apparently before claimant had again begun to drive them away he was hit in the eye by one of the shots and the sight was permanently injured. He was hit as a result of the very trespassing and danger to property he was there to prevent. He had just performed his duties in that line, he was ready to repeat, if necessary, what he had before done, he was there to perform these very duties and was engaged in the performance of such duties, although the hit
was made before he had a chance to actually proceed the second time to drive the boys away. The whole affair was substantially a continuous performance. It can hardly be claimed that had the hit occurred when he was returning from driving them away the first time, he could not recover because he was coming back instead of going out. No more can it be claimed that upon the immediate repetition of the acts for which he had just driven the boys away, he could not recover because his injury occurred before he could get under way to pursue them. To use the language of the trial court, the claimant, on resumption of his former work laying the walk, “was still acting in the capacity of guardian against intruders and trespassers and as general protector of the property, differing [in that respect] from an ordinary employee engaged simply to lay brick.”
This is not the case so frequently discussed in the reports of the sportive or the quarrelsome act of a fellow-employee, or what is called “larking ” between fellow-employees, but of trespasses in fact which the claimant was employed to prevent, and none the less trespass and dangerous because done mischievously and not maliciously. Nor is it a case of mere mischievousness of the boys and personal resentment of the claimant unconnected with the sphere of his duty. The claimant was not merely the layer of a walk, but in addition he was a protector of property, and the injury was incidental to his employment because it arose out of the specific duty as to trespasses imposed by the employment upon him. In its most literal sense the injury had its origin in a risk imposed by the employment.
Mann
v.
Glastonbury Knitting Co.,
90 Conn. 116, 96 Atl. 368. See, also, L. R. A. 1918E, p. 504, note. In
Jacquemin
v.
Turner & Seymour Mfg. Co.,
92 Conn. 382, 103 Atl. 115, the case was
that of a personal dispute and quarrel between two employees, and its reasoning furnishes no aid to the respondent. The respondent appears to rely upon
Reithel’s Case,
222 Mass. 163, 109 N. E. 951. There a mill superintendent had been instructed by the manager that if a certain disorderly person came into the mill the superintendent was to order him out and, if he did not go, to send for the police. The disorderly person came into the mill, the superintendent motioned to him to go out, and the disorderly person shot the superintendent and caused his death. It was held that the death arose out of the employment. In that case it was said (p. 165): "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 [the disorderly person], he would not have been in the way of receiving it. The causative danger was peculiar to his work. It was incidental to the character of the employment and not independent of the relation of master and servant. Although unforeseen and the consequence of what on this record appears to have 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.” The difference between
Reithel’s Case
and the present, is that there the duty was with respect to a particular trespasser, while here it was toward trespassers generally, and here the injury was even more closely connected with the trespass, for it was the result of the trespass itself which caused the injury and not some collateral malicious act of the trespasser.
Harbroe’s Case,
223 Mass. 139, 111 N. E. 709, also cited by respondent, was where in the dark a night watchman and his companion saw a deputy-sheriff and his assistant, and
each party mistook the other party for “yeggmen ” who had just robbed a post office near by. Shots were exchanged and the watchman was killed. In holding that the killing did not arise out of the employment, the court there said (p. 143): “He was not shot while protecting his employer’s property from thieves. At the time of this accident the property was in no way threatened, nor did Harbroe suppose it was. And he was not fired upon because he was the watchman in charge. The injury might quite as well have been suffered by any person who happened to be in the locality, whether employed by the construction company or not.
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Gager, J.
The specific duties of the claimant, among others, were to drive trespassers and intruders off respondent’s property, and to protect the property generally. Mischievous boys, having no intention of damaging respondent’s property, and being on adjoining property, shot air-rifles upon respondent’s property, and the shots fell about the claimant. Partly to protect his person and partly to protect the glass in respondent’s building near which the claimant was working and which he apprehended might be injured, the claimant chased the boys away. Were the boys, when so shooting, trespassers or intruders or endangering respondent’s property? Though standing on adjoining land the boys, in shooting on to the respondent’s land, were trespassers, and the fair import of the finding is that claimant was justified in regarding the shooting as dangerous to respondent’s glass. The shooting was certainly dangerous to persons as the result showed.
This is a case of entry by the thing controlled. 38 Cyc. 996;
Whittaker
v.
Stangvick,
100 Minn. 386, 111 N. W. 295, 10 L. R. A. (N. S.)
921; McGhee
v.
Norfolk & Southern Ry. Co.,
147 N. Car. 142, 60 S. E. 912, 24 L. R. A. (N. S.) 119. In chasing the boys away, claimant was trying to put a stop to these trespasses and the danger to property consequent upon the shooting, and was acting strictly within the line of his employment. Had he then been hit while chasing the boys away, that hitting unquestionably would have arisen out of his employment. That the shooting was playful and not intended to do damage, can make no difference. In carrying out the employer’s orders claimant was not obliged first to ascertain whether the shooting was malicious or in fun. The trespass and the danger to the glass were the same in either case.
But the respondents urge that, granting all this, the accident did not occur while claimant was driving the boys away, that he had returned to the work he was doing before he drove them away, and was not actively protecting the property at the time he was injured. The finding shows that, having driven the boys away, he returned to his work and the boys also returned to them sport of shooting in his direction to induce him to chase them again. Whatever their intentions, they in fact renewed their trespassing and renewed the danger to person and property. The finding is not explicit, but apparently before claimant had again begun to drive them away he was hit in the eye by one of the shots and the sight was permanently injured. He was hit as a result of the very trespassing and danger to property he was there to prevent. He had just performed his duties in that line, he was ready to repeat, if necessary, what he had before done, he was there to perform these very duties and was engaged in the performance of such duties, although the hit
was made before he had a chance to actually proceed the second time to drive the boys away. The whole affair was substantially a continuous performance. It can hardly be claimed that had the hit occurred when he was returning from driving them away the first time, he could not recover because he was coming back instead of going out. No more can it be claimed that upon the immediate repetition of the acts for which he had just driven the boys away, he could not recover because his injury occurred before he could get under way to pursue them. To use the language of the trial court, the claimant, on resumption of his former work laying the walk, “was still acting in the capacity of guardian against intruders and trespassers and as general protector of the property, differing [in that respect] from an ordinary employee engaged simply to lay brick.”
This is not the case so frequently discussed in the reports of the sportive or the quarrelsome act of a fellow-employee, or what is called “larking ” between fellow-employees, but of trespasses in fact which the claimant was employed to prevent, and none the less trespass and dangerous because done mischievously and not maliciously. Nor is it a case of mere mischievousness of the boys and personal resentment of the claimant unconnected with the sphere of his duty. The claimant was not merely the layer of a walk, but in addition he was a protector of property, and the injury was incidental to his employment because it arose out of the specific duty as to trespasses imposed by the employment upon him. In its most literal sense the injury had its origin in a risk imposed by the employment.
Mann
v.
Glastonbury Knitting Co.,
90 Conn. 116, 96 Atl. 368. See, also, L. R. A. 1918E, p. 504, note. In
Jacquemin
v.
Turner & Seymour Mfg. Co.,
92 Conn. 382, 103 Atl. 115, the case was
that of a personal dispute and quarrel between two employees, and its reasoning furnishes no aid to the respondent. The respondent appears to rely upon
Reithel’s Case,
222 Mass. 163, 109 N. E. 951. There a mill superintendent had been instructed by the manager that if a certain disorderly person came into the mill the superintendent was to order him out and, if he did not go, to send for the police. The disorderly person came into the mill, the superintendent motioned to him to go out, and the disorderly person shot the superintendent and caused his death. It was held that the death arose out of the employment. In that case it was said (p. 165): "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 [the disorderly person], he would not have been in the way of receiving it. The causative danger was peculiar to his work. It was incidental to the character of the employment and not independent of the relation of master and servant. Although unforeseen and the consequence of what on this record appears to have 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.” The difference between
Reithel’s Case
and the present, is that there the duty was with respect to a particular trespasser, while here it was toward trespassers generally, and here the injury was even more closely connected with the trespass, for it was the result of the trespass itself which caused the injury and not some collateral malicious act of the trespasser.
Harbroe’s Case,
223 Mass. 139, 111 N. E. 709, also cited by respondent, was where in the dark a night watchman and his companion saw a deputy-sheriff and his assistant, and
each party mistook the other party for “yeggmen ” who had just robbed a post office near by. Shots were exchanged and the watchman was killed. In holding that the killing did not arise out of the employment, the court there said (p. 143): “He was not shot while protecting his employer’s property from thieves. At the time of this accident the property was in no way threatened, nor did Harbroe suppose it was. And he was not fired upon because he was the watchman in charge. The injury might quite as well have been suffered by any person who happened to be in the locality, whether employed by the construction company or not. Further, although Harbroe mistakenly believed that the two approaching figures were ‘yegg-men,’ they were in fact an officer of the law and his assistant, who were in the performance of their duty, seeking to apprehend the men who recently had robbed the post office. The injury which they inflicted was the result of an unfortunate misapprehension on their part (to which Harbroe himself unwittingly contributed), and cannot reasonably be said ‘to have had its origin in a hazard connected with the employment and to have flowed from that source as a rational consequence.’ ” The reasoning in that case does not at all fit the facts of the present case, for it counts on exactly the absence of a relationship and a duty-which are quite prominently present in this case. We have examined the other cases cited by the respondent and do not think they militate against the conclusion we have reached. We therefore hold that claimant’s injury arose out of his employment within the meaning of the Compensation Act, and no question was raised but that it happened in the course of his employment.
There is no error.
In this opinion the other judges concurred.