Mutual Implement & Hardware Ins. v. Pittman

59 So. 2d 547, 214 Miss. 823, 1952 Miss. LEXIS 523

• Court: Mississippi Supreme Court
• Decided: June 9, 1952
• Docket: 38192
• Status: Published

Opinions

Hall, J.

This is an appeal from a judgment of the circuit court affirming an award to appellee by the Workmen’s Compensation Commission for injuries resulting from an assault and battery committed upon him by a fellow employee. These workers were engaged in laying a concrete floor in a garage building. A concrete mixer was situated just outside the door of the building. Appellee, a Negro boy sixteen years of age, was one of the employees engaged in pushing a wheelbarrow in carrying the concrete from the mixer to the inside of the building. Oliver Stewart, a white man, was engaged in spreading the concrete by means of a shovel when it was emptied from the wheelbarrow. Each time the mixer was emptied there was necessarily a short interval while the mixer was being refilled during which time Pittman and Stewart had no duties to perform. During such an interval Stewart, who was standing in the doorway, removed a cigarette package from his pocket and lighted the last cigarette in the package. He then crushed the package into a small ball and thumped it at Pittman, striking him on the back of his neck, and then turned his back toward Pittman. Pittman looked around and then picked up a small pebble and thumped it toward Stewart, striking him on the shoulder or neck, and Pittman thereupon turned his back toward Stewart. These incidents were of no consequence and inflicted no injury upon either employee. They fall within the category which is classified in the workmen’s compensation decisions as “horseplay”. Stewart then walked over behind Pittman and struck him a tremendous blow on the back of the head with the shovel with which he was working. Pittman was knocked unconscious, his skull was fractured, and he sustained a serious and permanent brain injury. At the time of the assault Pittman was standing by his wheelbarrow waiting for it to be refilled by the mixer.

Appellant relies primarily upon a line of decisions which deny compensation for injuries resulting from “horseplay,” and, while there is a conflict in the decisions founded on that principle, we are of the opinion that in this case the “horseplay” had ended and that Pittman received his injury as the result of willful assault and battery. In the decisions on injuries resulting from an assault and battery there is also a conflict in the authorities, and since this is a case of first impression in this State it is necessary for us to determine whether we shall follow those authorities which give the compensation act a strict and narrow construction or those that give to it a broad and liberal construction. We align ourselves with the latter group.

In Plorovitz on “Current Trends in Workmen’s Compensation” pps. 662-665, numerous decisions are cited which sustain the following views of the author: “However, the unending stream of appeals (by insurers mainly, as most employees cannot afford to appeal), on the ground that injuries do not 'arise out of’ the employment, will never abate so long as some courts will inject antiquated common law rules into a new law which intended once and for all to bury the narrow rules of the common law as related to work-injuries. A few jurisdictions omitted the use of the words 'out of’ the employment, but that did not solve their problem, as the courts properly read in an equivalent requirement of some degree of 'causal relation’ to the employment. To say that ‘in the course of’ the employment i. e. temporal connection alone is sufficient, would make the employer an insurer, and be health and accident insurance in the guise of workmen’s compensation. But where any reasonable relation to the employment exists or the employment is a contributory cause, the court is justified in upholding an award as ‘out of’ the employment.

“The trend is to get away from earlier narrow or strict cases and to follow the more recent liberal views. The overwhelming weight of authority gives the benefit of the doubt to claimants on law questions, as distinguished from fact questions. And the weight of authority urges the trial court or commissioners to construe evidence liberally in favor of claimants in compensation cases; and on appeal there is a growing modern tendency to uphold findings for claimant even though the facts on which they are based are doubtful, slender or weak, and to reverse findings of fact which disregard favorable, uncontradicted evidence, or which reach unfavorable general conclusions, hiding the law of the specific facts, or which construe evidence narrowly against claimants. The rule of liberal and broad construction is especially justified, as the acts usually severely cut down the amounts individuals can recover, with the intent that the recoveries be spread over a larger number of cases and thus benefit larger groups of workers,.and to effectuate the humane purposes for which the acts were enacted. Hence board or commission awards based on a liberal construction of the words ‘out of’ are upheld whenever ‘rationally possible.’ Any reasonable doubt as to whether the act or injury of the employee arose out of the employment should be resolved in favor of the employee or dependent, in view of the policy of broad and liberal construction of the workmen’s compensation law.”

Our Compensation Act, Chapter 354, Laws of 1948, provides that the injury must arise “out of and in the course of employment.” The foregoing quotation from Horovitz deals with what is meant by the use of the words ‘out of’ in compensation acts. In the same work at pps. 777-778 the author cites decisions to support his conclusions as to what is meant by the words “in the course of employment” as follows:

“In short, where the injury arises out of the employment, it almost necessarily arises in the course thereof. As said by one court:

“ ‘A good deal has been said about the difference between an accident arising “out of” and one arising “in the course of” the employment. No doubt in the earlier cases under the act there was a certain amount of difficulty in the distinction, but my view on the matter is quite determined. I think it is impossible to have an accident arising out of, which is not also in the course of the employment, but the converse of this is quite possible. ’

“Nevertheless, some courts still continue to disallow claims on narrow definitions of the words ‘in the course of’ the employment, and the intent of the founders of compensation acts to give wide relief to injured workers receives many a jolt as new decisions seek new ways of denying recovery. ’ ’

As early as 1930, in a case dealing with “horseplay” and sportive acts, the Supreme Court of North Carolina said that The Workmen’s Compensation Act “itself contemplates’that successful industrial operation presumes the assembling of workers in one place who are engaged in various phases of the general prosecution of the business. It is a self-evident fact that men required to work in daily and intimate contact with other men are subjected to certain hazards by reason of the very contact itself because all men are not alike. 'Some are playful and full of fun; others are serious and diffident. Some are careless and reckless; others are painstaking and cautious. The assembling of such various types of mind and skill into one place must of necessity create and produce certain risks and hazards by virtue of the very employment itself. # *' * The bulk of normal American workmen possess a stratum or residuum of vivacity and good nature which frequently manifests itself in joking and harmless pranks. These things are not unnatural, hut natural, and the ordinary outcropping of industrial contact between men of all classes and types. Such risks, therefore, are incident to the business and grow out of it. In an ordinary suit for damages for personal injury, the workman assumes the ordinary risks of the business, but the Compensation Act in such case imposes the ordinary risk of the business upon the employer; that is to say, the employer and not the workman must assume the ordinary risks of the business or employment.” Chambers v. Union Oil Company, 199 N. C. 28, 153 S. E. 594, 595. To the above stated contrast in human nature we may add that some men are quarrelsome, contentious, bellicose and inclined to fight, while others are peaceful and not easily provoked to anger, and the very contact between employees who are required to work together subjects them to the hazards resulting from the pugnacious dispositions of their fellow employees in the same manner and to the same extent that they are exposed to hazards of machines about which they are required to work.

In the case of Hartford Accident & Indemnity Company v. Cardillo, 72 App. D. C. 52, 112 F. (2d) 11, 15, certiorari denied 310 U. S. 649, 60 S. Ct. 1100, 84 L. Ed. 1415, an assault was committed by one employee upon another resulting from the fact that the victim had addressed the aggressor by the nickname “Shorty.” A claim for compensation was made under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. A. Sec. 920(a) which is quite similar to our compensation act now under consideration. The United States Employees’ Compensation Commission awarded compensation to the injured employee, and, on appeal therefrom, the United States Court of Appeals for the District of Columbia, speaking through the late Justice Wiley Rutledge, said, in part: “An assault necessarily involves emotional makeup and disturbance. In a broad sense nothing’ is more personal. Quarreling is always so. This accounts for the early disposition to regard all injuries from wilful assault as not compensable, a view also necessarily dictated, except rarely when duty requires fighting, if tendency of the particular act to forward the work or direct connection with line of duty are the tests of liability. But that view now is repudiated universally in recognition that work causes quarrels and fights. That they involve volition and fault, have no tendency to forward the work, and are permeated with the personal element of anger no longer suffices to break the causal connection between work and injury. Emotional disturbance is not of itself an ‘independent, intervening cause’ or a ‘departure from the work.’

‘ ‘ But differences remain as to when work causes quarrels. So long as the claimant is merely the victim, not a participant, it makes little difference whether the fighting is by fellow employees or strangers to the work or what is the immediate occasion for the dispute. The same is true in horseplay. It is sufficient that the work brings the claimant within the range of peril by requiring his presence there when it strikes. * * * Personal animosities are created by working together on the assembly line or in traffic. Others initiated outside the job are magnified to the breaking point by its compelled contacts. No worker is immune to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and important, personal and official. But the explosion point is merely the culmination of the antecedent pressures. That it is not relevant to the immediate task, involves a lapse from duty, or contains an element of volition or illegality does not disconnect it from them nor nullify their causal effect in producing its injurious consequences. Any other view would reintroduce the conception of contributory fault, action in the line of duty, nonaccidental character of voluntary conduct, and independent, intervening cause as applied in tort law, which it was the purpose of the statute to discard. It would require the application of different basic tests of liability .for injuries caused by volitional conduct of the claimant and those resulting from negligent action, mechanical causes and the volitional activities of others. * * #

“It follows that the judgment must be affirmed. Taking full account not only of the findings but of all the evidence, it is clear that the entire sequence of incidents occurred not only while the claimant and his assailant were at work, but as a natural and normal product of working together. The record shows no private or personal relations between them. The discussion about watches, if that were material as contended by appellant was carried on in the normal intercourse of employee with employee. It was not relevant to any particular duty; neither was it an interruption or a departure from the work, much less an ‘independent, intervening agency. ’ If ‘personal,’ it was one of those personal things which employees constantly do, not only while, but because they are working together. All this may be said also concerning the use of the respective appellations of ‘Shorty’ and ‘Skinny,’ both in the banter and in the official acts of giving and receiving orders. The claimant may have been at fault in resenting his superior’s ridicule, expressed perhaps as much in tone as in language, by repeated use of the diminutive nickname, both personally and officially. His remonstrance should have ended the practice. When it did not, the fighting word sprang to the lips, and the superior employee responded with his fist. Claimant may have been at fault, but he was the aggressor neither in the banter nor in the physical encounter. We do not put the case on the narrow ground that D'owney was Bridges’ superior and as such owed him the duty not to belittle him or ridicule his physical stature. Fault there was on both sides, the graver perhaps in Downey for the fact that he was the superior and knew not when to stop. But compensability in these circumstances is not a matter of comparative fault. The entire sequence of events arose out of the fact that the work of the participants brought them together and created the relations and conditions which resulted in the clash. ’ ’

In the case of Ferguson v. Cady-McFarland Gravel Company, 156 La. 871101 So. 248, 249, from the Supreme Court of our sister State of Louisiana, an employee, while in a stooping position in the course of his employment, was struck on the head and killed with an iron instrument in the hands of a fellow-employee, without knowing why he was so struck, or regaining consciousness thereafter. In holding the death compensable under the compensation act the Court said:

“An employee, like the decedent, who may have an enemy among his fellow employees in the same gang in which he is required to work, necessarily comes in contact with such enemy throughout all hours of the day, and is constantly exposed to assault and bodily harm. He therefore incurs greater risk necessitated by his employment than a person ordinarily would be subjected to outside of such employment.

“The moment we begin to indulge in hair-splitting distinctions in case of this kind, that moment wo approach the danger line of reading into the statute the defense that the employee assumes the risks of his employment, a defense which the employer is expressly prohibited from urging under the Employers’ Liability Act against a claim for compensation by a workman. Act .38 of 1918, Sec. 4, [LSA-R.S. 23:1042]. Whether the employer, the employee, or the fellow employee is guilty of negligence or not is immaterial, so far as the liability of the employer is concerned. Garcia v. Salmen Brick & Lumber Co., 151 La. 784, 92 So. 335. Therefore the decisions cited by able counsel representing defendant company, and found in the American Law Reports (volume 35, p, 583) [State ex rel. Common School Dist. No. 1 v. District Court, 140 Minn. 470, 168 N. W. 555] to the effect that the employer is responsible only when he knew of the dangerous character of the co-employee; are inapplicable, as such cases hold the employer liable only when he is proven to be guilty of negligence. As employee is powerless to select competent and law-abiding fellow employees, and evidently, does not assume any risk under the Employers’ Liability Act because of the hiring by the employer of unskilled and vicious workmen.

“As employment in gang work, such as decedent was engaged in, necessitates collaboration, the working together of the employees constitutes the nature of such employment, and the risk of assault and personal injury to the employee is to be viewed from that aspect. Obviously, such risk is greater than it would be to a person not engaged in such employment, because such person is not required to be constantly in the presence of an enemy, should he have one. ’ ’

Another Louisiana case where compensation was awarded for the death of an employee who was shot, while riding in from his work on a log train, by a fellow-employee who was standing on the ground beside the track as the train passed, is Keyhea v. Woodard-Walker Lumber Co., La. App., 147 So. 830, 832 and we quote from the opinion in that case:

“Injury to or accidental killing of an employee is not compensable unless the injury or death arose £ out of and in. the course of’ the employment and must have been incidental thereto. Kern v. Southport Mill, Ltd., 19 La. App. 338, 136, So. 225; Id., 174 La. 432, 141 So. 19; Conaway & Clark v. Marine Oil Co., 5 La. App. 134 [110 So. 181].

“This question was given thorough consideration by Justice Provosty in the early case, arising under the Workmen’s Compensation Law of 1914, of Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256, 257. The rule laid down in this case, correctly expressed, in the syllabus, is: 'The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment. ’ * * *

‘ ‘ The deceased and his slayer both lived in the mill quarters of defendant. They were daily associated. They often rode the same train out to their work. Their duties were different, but they had the same employer. The nature of the ill feeling between them, and the circumstances of the case, point somewhat definitely to jealousy as being* the motive behind their trouble. The fact that deceased and his slayer were constantly thrown together as a result of their employment was calculated to aggravate a pre-existing enmity of possibly several months’ standing. That no one seems to know why deceased threatened Williams lends force to the supposition that jealousy was at the bottom of their personal ill feeling. It is of common knowledge that daily association and contact between enemies does not, as a rule, improve their lack of cordial relations, and, when jealousy of the character shown in this case is the cause of the enmity, and where the parties, as in this case, are members of the colored race, it is not surprising that a climax tragic in character should be the result.

“Deceased’s employment to defendant undoubtedly increased the danger of, and risk from, injury at the hands of his enemy, Williams. Such danger and risk were obviously greater for him than it would have been for one not engaged in this employment. The killing* of deceased Avas an ‘ accident ’ within the meaning of Act No. 38 of 1918, § 1, amending Act No. 20 of 1914, § 38 [LSA-R.S. 23:1021], and arose out of and incidental to his employment.

“This case, we think, falls squarely within the rule announced in Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248, the syllabus of which we quote:

“ 'Injury to a track employee, who, while in a stooping position, was truck on the head by an iron instrument in hands of fellow employee, held an “accident” within Act No. 38 of 1918, § 1, amending Act No. 20 of 1914, § 38, defining an accident as “an unexpected or unforeseen event happening suddenly or violently with or without human fault, and producing at the time objective symptoms of an injury.”

“ 'A track emploj^ee who, while at work in a stooping position, was struck on the head with an iron instrument in the hands of a fellow employee, held injured by accident ' ‘ arising out of and in course of employment,” within Employers’ Liability Act.’

“To the same effect is Dyer, v. Rapides Lbr. Co., 154 La. 1091, 98 So. 677. In that case the employee was shot from ambush and killed while making a fire in defendant’s engine. The identity of the slayer was not known; consequently no motive for the killing was learned. Compensation was allowed. ’ ’

The case of Verschleiser v. Joseph Stern & Son, Inc., 229 N. Y. 192, 128 N. E. 126, 127, fully supports our position and we quote from the opinion therein as follows:

“At the time in question the claimant was standing beside his truck, waiting for the 'belly’ of an animal being cut up by one Mandelheim. Also waiting in line, apparently for other portions of viscera, was another trucker, Dudler.

“One Louis E. Baxter, who at the time was commissioned as a veterinary inspector of the United States government, was stationed at the slaughterhouse, and in charge of the entire building so far as government inspection was concerned. While the claimant was waiting to have his truck loaded, some one — and the Industrial Commission has found — a fellow employee of claimant, dropped a piece of flesh about two feet long around the neck of claimant. There is some testimony that this may have been done by the veterinarian. The claimant resented the insult and assault upon him, and, in his excitement, believing the attack to have been made by Dudler, went over to him and struck him several times with the piece of flesh, and then threw it down. Dudler thereupon kicked the claimant, causing the injuries complained of. Dudler’s hands were occupied, so he used his feet. * * *

“In the instant case the claimant was not the agressor, but was attending to his master’s business on his master’s premises at the time of the assault. He was waiting to 'lug’ away viscera, and while waiting there for .his master’s benefit and in the work for which he was employed was assaulted. In his excitement he defended himself by a counter attack upon, as it seems, another employee, with the resulting injury to himself. He did not initiate the 'melee,’ but was desirous only of transacting his master’s business in peace. This fellow employee had previously, he claimed, interfered with his working. The Industrial Commission has found that claimant was engaged in the regular course of his employment when he was kicked. This is a finding of fact. The claimant was thrown on the defensive, striking- Dudler with the piece of flesh, who kicked him. If claimant was right in assuming that Dudler was his assailant, his striking back would have been the natural result of the act, and it might then well be said that claimant was within the act.

“The Workmen’s Compensation Law (Consol. Laws, c. 67) should be construed broadly. Compensation-under it does not depend on any fault of the master or any negligence of the servant. The law was enacted to do away with the defenses which had governed the law of master and servant. The question in each case arising under the 'Workmen’s Compensation Law is, ‘Was the injury received while engaged in the master’s business?’ If the servant had left his employment and was willfully pursuing designs of his own, he would not be entitled to compensation. The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault or insult, reacts and in self-protection strikes another. His act is as involuntary as that of closing the eye to avoid dust, the same action and reaction which the law recognizes in its definition of manslaughter.

“Danger of employment in modern business comes from the gathering together of great and dangerous machines. There is a line of cases which hold that if an employer continues to employ a man of dangerous temper after he has become aware of the same, and he inflicts injury on a fellow workman, the workman will be entitled to recovery under the Compensation Act. This, however, is a retrogression to the old master and servant law, and clearly against the intent of the Workmen’s Compensation Law, which does not look for fault, but merely insures workmen in certain employment.

“In the instant case the injury was the result of provocation and passion engendered between employees in the course of their employment on the premises of the employer while engaged in their daily work. Mcntyre v. Rodger, 41 Scot. L. Rep. 107; Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N. E. 530.

“Under the circumstances of the instant case a workman at work for his master, who sustains injury because of his environment, is entitled to recover. This right to recover is not nullified by the fact that his injury is augmented by natural human reactions to the danger or injury threatened or done.

“The purpose of the Compensation Act was to benefit certain workmen otherwise without legal recovery. Under its provisions they may receive compensation independent of the fault of the employer at common law or other statutes.

“As Judge Pound said in Matter of Heitz v. Ruppert, 218 N. Y. 148, 154, 112 N. E. 750, 752, L. R. A. 1917A, 344, speaking of the effect and purpose of the Compensation Act:

“ ‘The law has been and should be construed fairly, indeed liberally, in favor of the employee. Against its justness or economic soundness nothing can be said.’

“It may seem harsh and arbitrary to- impose liability upon a master for an assault committed by a workman upon a coworkman, but the purpose and intent of the statute is to fix an arbitrary liability in the greater public interest involved. This legislation was to ameliorate a social condition — not to define a situation or fix a liability by an adherence to the old common law. Liability was imposed regardless of fault — vitally different from that under the common law. Injury by an employee moved by some cause aside from his regular duties, may be considered an inevitable, however undesirable, result-— a risk which is incident to the employment of many persons. It is a burden which industry may well bear under this legislation, Hulley v. Moosbrugger, 87 N. J. L. 103, 93 A. 79; Thom v. Sinclair, (1917) A. C. 127; Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128; Knopp v. American Car Co., 186 Ill. App. 605, 29 Tale Law Journal, 672. The claimant is entitled to the benefit of the act.”

Another New York case, Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711. 13 A. L. R. 522. involved an award of compensation under the “horseplay” doctrine, but the opinion, written by the late Justice Cardozo, is so applicable to the case at bar that we quote from it:

“The claimant while engaged in the performance of his duties in the employer’s factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horseplay, and had no knowledge of it till injured. The question is whether' the accident was one ‘arising out of and in the course of employment,’ within the meaning of the statute (Workmen’s Compensation Law, § 3, subd. 7; Consol. Laws, c. 67).

“That it arose ‘in the course ofemployment’ is unquestioned. That is arose ‘out of’ employment, we now hold. The claimant’s presence in a factory in association with other workmen involved exposure to the risk of injury from the careless acts of those about him. He was brought by the conditions of his work ‘within the zone of special danger.’ Thom v. Sinclair, 1917 A. C. 127, 142. Whatever men and boys will do, wlien gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. L. 103, 93 A. 79, that it was ‘but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment’s diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor. ’ The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment. Thom v. Sinclair, supra; Matter of Redner v. H. C. Faber & Son, 223 N. Y. 379, 119 N. E. 842. * * *

“The risks on injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business. Many things that have no such tendency are done by workmen every day. The test of liability under the statute is •not the master’s dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk.”

In Grillmore v. Ring Const. Co., 227 Mo. App. 1217, 61 S. W. (2d) 764, 766, an employee had reported for work and because of prevailing weather conditions was instructed to wait and see whether the conditions would improve to the extent that the work might proceed. While standing around a fire, awaiting further instructions from his employer, an argument ensued and one of his fellow employees pushed the claimant and he slipped and fell, breaking his leg. In holding that the injury was compensable under the compensation act, the Court said:

“ The claimant was an employee. He had reported for work and in conformity with the conditions under which the work was being done for his employer. He was doing what his foreman told him to do, that is, to wait on the job for development as to weather conditions. Complainant was obeying his master’s orders. He was as much in his line of duty as he would have been if pouring cement. Complainant was waiting at what may be inferred to be the accustomed place, that is around the fire with other employees, on this December morning. Being around that fire and waiting was incident to his employment and while so situate an accident occurred within the meaning set out in par. (b) of section 3305, Mo. St. Ann. [V.A.M.S. § 287.020] (Workmen’s Compensation Act, § 7, as amended by Laws 1931, p. 382, § 1.)

“Employers, whose work require that men wait upon the job for work conditions, ought not to be heard to say that an accident, occurring out of the very conditions presented by the required waiting, is not compensatory. Men standing and waiting around an open fire on a damp December day naturally mill around and talk and even joke and indulge in what might be termed ‘horseplay.’

“Where the purpose of a law is to do away with the issue of negligence, accident, assumed risk, contributory negligence, and the like, it follows that the law should be liberally construed.

“Wé conclude, from the undisputed facts in evidence in this case, that'as a matter of law it should be held that the accident wherein the compainant was injured arose out of and in the course of his employment. Keithley v. Stone & Webster Engineering Corporation, 226 Mo. App. 1122, 49 S. W. (2d) 296, and Hager v. Pulitzer Pub. Co., Mo. App., 17 S. W. (2d) 578.”

To quote from all the cases which sustain our view that the judgment of the lower court should be affirmed would extend this opinion to undue lengths. Ample support for our holding is found in the following authorities : Kaiser Lbr. Company v. Industrial Commission, 181 Wis. 513, 195 N. W. 329; Distefano v. Standard Shipbuilding Corporation, 203 App. Div. 145, 196 N. Y. S. 452; Indemnity Ins. Company v. Scott, Tex. Com. App., 298 S. W. 414, affirming Tex. Civ. App., 278 S. W. 347; Parker v. Federal Steam Nav. Co., 95 L. J. K. B., N. S. (Eng.) 664, 18 B. W. C. C. 469, W. C. & Ins. Rep. 136; Schultz v. Chevrolet Motor Co., 256 Mich. 393, 239 N. W. 894; Humphrey v. Tietjen & S. Milk Co., 235 App. Div. 470, 257 N. Y. S. 768, affirmed 261 N. Y. 549, 185 N. E. 733 ; Kline v. Pennsylvania R. R. Co., 101 Pa. Super. 539; Cooley v. Glidden Buick Corp., 271 App. Div. 762, 64 N. Y. S. (2d) 466; Longoria v. Langner, 271 App. Div. 762, 64 N. Y. S. (2d) 509; Chanin v. Western Union Tel. Co., 271 App. Div. 763, 64 N. Y. S. (2d) 670; Pascaliacchio v. Mule, 271 App. Div. 762, 64 N. Y. S. (2d) 725; Vesper v. Colonial Radio Corp., 274 App. Div. 859, 81 N. Y. S. (2d) 794; Department of Taxation Finance v. Roth Grill, Inc., 272 App. Div. 852, 70 N. Y. S. (2d) 337; Associated Employers Lloyds v. Wiggins Tex. Civ. App., 208 S. W. (2d) 705; Badger Furniture Company v. Champeau, 195 Wis. 134, 217 N. W. 734; Louie v. Bamboo Gardens, 67 Idaho 469, 185 P. (2d) 712; Stephens v. Spuck Iron & Foundry Company, 358 Mo. 372, 214 S. W. (2d) 534; Newell v. Moreau, 94 N. H. 439, 55 A. (2d) 476; Sanders v. Jarka Corporation, 1 N. J. 36, 61 A. (2d) 641; Cole v. I. Lewis Cigar Mfg. Company, 3 N. J. 9, 68 A. (2d) 737; Grant v. Grant Casket Co., 137 N. J. L. 463, 60 A. (2d) 817; Burns v. Merritt Engineering Co., 302 N. Y. 131, 96 N. E. (2d) 739; Hegler v. Cannon Mills, 224 N. C. 669, 31 S. E. (2d) 918; Dillon’s Case, 324 Mass. 102, 85 N. E. (2d) 69; Turner v. Bluff City Lbr. Co., 189 Tenn. 621, 227 S. W. (2d) 1; Gillmore v. Ring Construction Co., 227 Mo. App. 1217, 61 S. W. (2d) 764; Milton v. T. J. Moss Tie Co., La. App., 20 So. (2d) 570; Stasmas v. State Industrial Commission, 80 Okl. 221, 195 P. 762, 15 A. L. R. 576.

Summarizing our holding, it is that the employment and nature of the work brought Pittman and Stewart in close contact with each other, that one of the hazards of this contact was that of an assault committed by one employee upon another, that under our compensation law the injured employee is entitled to compensation for injury resulting from such a hazard the same as he would be if he had been injured by the machine in proximity to which he was required to work, and that the injury from this hazard arose out of and in the course of Pittman’s employment. There was sufficient evidence to support the award of the compensation commission and the judgment of the circuit court affirming that award is hereby affirmed by us.

Affirmed.

Alexander, Lee, Kyle, Holmes, Arrington and Ethridge, JJ., concur.