Where an engine hostler was last seen alive working on his engine and ten minutes thereafter was found lying by the engine, dead with a bullet wound, and there was nothing to indicate suicide nor under what circumstances the shooting occurred, the court said: "The case turns on the burden of proof as to that fact; the lower court held it was upon the claimants, while the compensation board held it was upon the defendant. We agree with the latter. The general rule is one of liability for violent injury suffered by an employee in the course of his employment, as this undoubtedly was; the exception is that the employer is not liable for 'an injury caused by an act of a third person intended to injure the employee because of reasons personal to him.' The burden of proving the exception rests upon the party interposing it as a defense, for as to that issue he holds the affirmative. See Zerbe v. Miller, 16 Pa. 488, 16 Cyc. 928. The burden of proof of a particular allegation rests upon the side to whose case it is necessary, and that is

107, 162 N. Y. S. 741; Chludzinski v. Standard Oil Co., 176 App. Div. 87, 162 N. Y. S. 225; Englebretsen v. Indus. Acc. Comm., 170 Cal. 793, 151 Pac. 421, 10 N. C. C. A. 545; Fragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999, 10 N. C. C. A. 475; In re Savage, 222 Mass. 205, 110 N. E. 283; Thackway v. Connelly & Sons, 3 B. W. C. C. 37; Lendrum v. Ayr Steam Shipping Co., Ltd., (1915), A. C. 217, (1914), W. C. & Ins. Rep. 438, (1914), 2 Sc. L. T. 137, 8 N. C. C. A. 1077; Hopkins v. Port Reading R. Co., 38 N. J. L. J. 19; Frith v. Louisianian (owners of), (1912), W. C. Rep. 285, 9 N. C. C. A. 262; Murphy & Sandwith v. Cooney, (1914), W. C. & Ins. Rep. 44, 9 N. C. C. A. 263; Smith v. Crescent Belting Co., 37 N. J. L. J. 292, 10 N. C. C. A. 640; Zabriskie v. Erie R. Co., 85 N. J. L. J. 157, 4 N. C. C. A. 778; Curran v. Newark Gear Cutting Machine Co., 37 N. J. L. J. 21; Chicago Great Western R. Co. v. Indus. Com. of Ill., 284 Ill. 573, 120 N. E. 508, 3 W. C. L. J. 14; Dow's Case, In re Mutual Liab. Assur. Co., 231 Mass. 341, 3 W. C. L. J. 144, 121 N. E. 19; Ginsburg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N. W. 15, 3 W. C. L. J. 317; Hege & Co. v. Tompkins, (Ind. App.) (1919), 121 N. E. 677, 3 W. C. L. J. 451; Rish v. lowa Portland & Cement Co., (Iowa), (1919), 170 N. W. 532, 3 W. C. L. J. 463, Nelson Const. Co. v. Indus. Com. of Ill., (1919), 286 Ill. 632, 122 N. E. 113, 3 W. C. L. J. 605; Benjamin

J. Shaw Co. v. Palmatory, (Del.), (1919), 105 Atl. 417, 3 W. C. L. J. 424; Carberry v. Deleware L. & W. R. Co., 93 N. J. L. 414, (1919), 108 Atl. 364, 5 W. C L. J. 419; Grant v. Fleming Bros. Co., (Ia.) 176 N. W. 640, 5 W. C. L. J. 688; Morris & Co. v. Indus. Comm., -, (1920), 128 N. W. 727, 7 W. C. L. J. 41.

Ill.

the defendent here. See 5 Am. & Eng. Enc. of L. (2d. Ed.), p. 24." 12

"The decedent, apparently while on his way to that part of the employer's plant where his services were to begin presently, was passing down an alley between rows of machinery, when he was warned of an approaching electric truck from the rear. In stepping aside, he appears to have reeled and walked backward upon his heels, falling in such a manner as to produce a fracture of the skull resulting in death some hours later. While it is highly probable that, had he been perfectly sober, the accident would not have occurred, the statute provides that in order to forfeit the benefits of the act, the injury must result 'solely from the intoxication of the injured employee while on duty.' Workmen's Compensation Law, section 10. No such condition is shown by the evidence; certainly the presumption is not overcome, and the award must be sustained. The injury occurred upon the premises of the employer, apparently while the decedent was about to take up the duties of his employment, and the presumptions of section 21, as well as the adjudications (Murphy v. Ludlum Steel Co., 182 App. Div. 139, 169 N. Y. Supp. 781), support the conclusions of the commission. The award should be affirmed." 13

He

An employee was sent to a private railroad yard, to unload a carload of lumber. He twice telephoned his employer about the nonarrival of the trucks with which to remove the lumber. was killed in a nearby railroad yard, through which he might have gone to reach a telephone. The court, holding that the accident arose out of the employment, said: "It is not known definitely from what point the deceased had sent in the telephone calls to his employer, but there was a telephone at the offices of the railroad, near the place where the deceased was killed. The commission assumed that the deceased was on his way to telephone his employer once more when he was struck and killed. No one knows the purpose to serve which, the deceased had gone upon the railroad

12. Keyes v. New York Ry. Co., 265 Penn. 105, (1919), 108 Atl. 406, 5 W. C. L. J. 464.

13. Richards v. New York Air Brake Co., (Dec. 29, 1919), 179 N. Y. S. 317, 5 W. C. L. J. 443, 190 App. Div. 78.

lands. He may have gone there in aid of his master, or upon business or pleasure of his own. There being no substantial evidence. to indicate the contrary, it must be presumed that his journey was made to serve his master, and that he was killed by an accident arising out of and in the course of his employment." 14

RULINGS AFFECTING SPECIFIC CASES AS ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT.

§ 296. Acting Under Unauthorized Orders.-The general rule, governing cases wherein an employee performs an act outside of the scope of his regular duties, at the direction of one who has no authority to give such orders, and is injured while so doing, in the mistaken belief that the party giving the orders had authority to give such orders does not make the accident one arising out of and in the course of the employment. But orders given by one superior in authority presents a different question, and the tendency of the decisions seems to be to the effect that the injured employee is entitled to compensation. So, where a cinder pit man falsely stated to decedent, his co-employee, that the general foreman told him to direct decedent to act in his place while he did something else, and decedent acted on such orders and was killed, it was held that the accident could not be said to arise out of the employment in which deceased was expected to engage.1

15

Where a superintendant instructs a servant to perform certain duties for the benefit of the superintendant, and the servant is injured while so doing, believing that he was acting for his master and is injured, an instruction relieving the master from liability, on the ground that the injury occurred while not engaged about the masters business, is properly refused.10

A minor, employed by a newspaper establishment as a carrier, worked under a foreman whose duties were in no way connected

14.

Smith v. A. M. Oesterheld & Son, (1919), 179 N. Y. S. 10, 5 W. C. L. J. 445, 189 App. Div. 384.

15. Southern Railway Co. in Kentucky v. Popes Admr., 119 S. W. 237, 133 Ky. 835.

16. Sims v. Omaha K. C. & E. Ry Co., 89 Mo. App. 197.

with the operation of the machinery. The foreman, without authority, ordered the minor to remove papers from a folding machine, and he was injured while obeying. It was held that the minor was a mere volunteer, and the master was not liable.1

Where one complies with an order given to him by one from whom he receives his orders, which order he knew or ought to have known the party had no authority to give, as it was expressly against the rules of the employer, and the employee in obeying such order is injured, the injury may nevertheless be an accident arising out of the employment.18

Where a boy was accustomed to do all sorts of things at the direction of his foreman, and was told by another that the foreman directed him to do certain work which statement was false but believed by the boy and acted upon, with the result that the boy was injured, it was held that the accident arose out of and in the course of the employment.19

Where an employee was injured while acting under the orders of a fire warden, as authorized by a statute, it was held that the injury could not be said to have arisen out of his employment.29

The applicant, who was employed as a teamster, in a municipal woodyard, for his board and lodging, was injured while acting outside of the scope of his regular duties, but in obedience to the orders of a superintendent who had general authority to give orders. It was held that the accident arose out of and in the course of the employment.21

§ 297. Acids.-An employee found that there was no hot water for cleaning up after work and endeavored to heat water by placing a bucket in what he supposed was a tank of hot water. but which was a tank of acid. The acid exploded and injured him.

17. Hatfield v. Adams, 96 S. W. 583, 29 Ky. Law. 880.

18. Statham v. Galloways Ltd., 2 W. C. C. 149; In re Felix McGowan, 3rd. A. R. U. S. C. C. 172.

19.

Brown v. Scott, (1899), 1 W. C. C. 11.

20. Kennelly v. Stearns Salt, etc., Co. 190 Mich. 628, 157 N. W. 378.

21. City of Oakland v. Indus. Acc. Comm. of Cal., 35 Cal. 484, 170 Pac. 430, 1 W. C. L. J. 488.

In holding that the accident arose out of and in the course of the employment, the court said: "The tank of acid constituted an insidious danger and potential peril to which employees in that institution were in some degree exposed. The injury sustained by appellee had its origin in conditions of such a nature as would prompt one to conclude, as of first impression, that it arose out of the employment. As against that conclusion, it may be said with much force that the workman stepped so far outside the custom as to exceed the bounds of reason; and that by his own rash conduct he transformed a latent into an active peril, thereby creating the hazard which resulted in his injury."' 22

Where an employee sustained an injury to his eye, while cleaning out a storage tank when acid splashed into his eye, it was held that he sustained an injury arising out of the employment.23

An employee, who was engaged in drawing wire and handling acid, contracted rash and eczema due to the acid. It was held that she had suffered an injury arising out of the employment.24

An employee who was engaged in handling cloth treated with chemicals contracted a rash which later developed into eczema and spread over his whole body. The court held that the evidence was sufficient to justify the board in finding that claimant suffered an accidental injury arsing out of the employment."

25

Where poisoneous substance enters the system though an abrasion of the skin while the employee is acting within the course of his employment, he has sustained an injury arising out of the employment.26

Where an employee, engaged in attending to stopcocks on acid barrels, sustained injury to his eyes from acid spurting from a

22. In re Ayers (Ind. App.), 121 N. E. 446, 18 N. C. C. A. 1022 (1919), 23. Armstrong v. California Rex Spray Co., 1 Cal. I. A. C. D., (1914), 190, 10 N. C. C. A. 261; Anderson v. Ashmore Mut. Tel. Co., Ill. Ind, Bd, Dec., (1915), 10 N. C. C. A. 262; Cox v. Gainsley, 2 Cal. I. A, C, D., (1915), 230, 10 N. C. C. A. 264.

24. Dolan v. Massachusetts, Wkm. Comp. Cases, (1913), 259, 10 N. C. C. A. 262.

25. Riker v. Liondale Bleach Dye & Print Works, 36 N. J. L. 305, 10 N. C. C. A. 262; Boris v. Frankfort Gen Ins. Co., 1 Mass. Wkm, Comp, Cas., (1913), 276, 10 N. C. C. A. 264.

26. In re Goldberg, Ohio Ind. Comm. Dec., (1914), 10 N. C. C. A. 263.