a mile or a mile and a quarter. On the morning of September 20, 1916, an unknown man asked for food at the boarding place of the teacher. On the evening of that day, when her work at the schoolhouse was fininsed, she started for her boarding house taking a short cut through the woods. She had some papers which she intended to correct at home in the evening and a book to study. As she was on her way, and when just off the school grounds, she was criminally assaulted by this man for the gratification of his passions and as a part of the transaction he shot her destroying the sight of her left eye. Some months later his body was found in a creek some miles away with a bullet wound through the heart and a revolver nearby. He had evidently committed suicide. There is no mistaking the facts recited. The assailant saw the teacher in the morning, lurked about until the opportunity came after she left school, and then committed the assault for purposes of his own.

The Compensation Act requires of the employer compensation "in every case of personal injury or death of his employee, caused by accident, arising out of and in the course of employment," etc. G. S. 1913, § 8203.

The meaning of the word "accident" and the phrase "personal injuries arising out of and in the course of employment" is defined as follows:

"(h) The word 'accident' as used in the phrases 'personal injuries due to accident' or 'injuries or death caused by accident' in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time, injury to the physical structure of the body.

"(i) Personal Injuries, etc.-Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of employment,' it is hereby declared:

"Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen, and shall not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment."

G. S. 1913, § 8230.

It is not questioned that the willful assault may be an accident within the definition of the act. Without stopping to consider whether the injury to the teacher occurred in the course of employment, as the statute uses the term, since she was away from the place of her definite school work, and on her way home, and

upon that question this opinion is not to be taken as intimating a view, we pass to a consideration of whether it arose out of employment within the meaning of the statute.,

The phrase, "arising out of employment," is usual to compensation acts though some do not have it, and it has been provocative of litigation. That under the circumstances an injury from an assault is one caused by accident arising out of the employment is without question; and it is as much without question that under other circumstances it is not.

When the nature of the employment is such as naturally to invite an assault, or when the employee is exposed to an assault by the character of his work, as when he is protecting or in charge of his employer's property, and the assault naturally results because of the employment and not because of something unconnected with it, so that it is a hazard or special risk of the work, the cases say that it arises out of the employment. The following are illustrative: Trim Joist Dist. School v. Kelly, [1914] A. C. 667 (schoolmaster in industrial school assaulted by pupils); Weekes v. Stead, 7 B. W. C. C. 398 (foreman whose duty it was to hire men, those applying being of a rough class, assaulted by man to whom he refused work); Nisbet v. Rayne, [1910] 2 K. B. 689 (cashier assaulted and killed for purpose of robbing him of employer's money); Anderson v. Balfour, [1910] 2 I. R. 497 (gamekeeper assaulted by poacher); Challis v. London, etc., Co. [1905] 2 K. B. 154 (engineer driving engine under bridge hit by a stone thrown by boy on bridge); Re Reithel, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304 (mill superintendent shot by trespasser whom it was his duty to remove); Chicago Dry Kiln Co. v. Industrial Board, 276 Ill. 556, 114 N. E. 1009 (night watchman assaulted while protecting employer's property); Ohio, etc., Co. v. Industrial Com., 277 Ill. 96, 1151 N. E. 149 (watchman assaulted); Hellman v. Manning Sand Paper Co., 176 App. Div. 127, 162 N. Y. Supp. 335 (watchman assaulted); Carbone v. Loft, 219 N. Y, 579, 114 N. E. 1062 (workman assaulted by fellow worker apparently as result of quarrel); Polar Ice & Fuel Co. v. Mulray (Ind. App.) 119 N. E. 149 (employee whose duty it was to collect shortages from deliverymen shot as result of quarrel with one of them about collections).

When the assault is unconnected with the employment, is personal to the assailant and the one assaulted, is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, the cases say that the intentional injury does not arise out of the employment. The following are illustrative: Murphy v. Berwick, 43 Ir. Law Times, 125 (cook in hotel assaulted by drunken customer of adjoining bar); Mitchinson v. Day Bros., [1913]

Vol. II-Comp. 44

1 K. B. 603 (employee, driver of a van, assaulted and killed by a drunken man under circumstances constituting manslaughter); Armitage v. Lancashire, etc., [1902] 2 K. B. 178 (workman injured by piece of iron thrown by angry fellow workman); Blake v. Head, 5 B. W. C. C. 303 (felonious assault by employer); Walther v. American Paper Co., 89 N. J. Law, 732, 99 Atl. 263 (night watchman killed by fellow employee for purpose of robbing him of his pay); Schmoll v. Weisbrod, etc., Co., 89 N. J. Law, 150, 97 Atl. 723 (collector of brewing company assaulted by unknown person in a rough locality where his work took him; no showing that motive was robbery or that employer knew of character of locality; Re Harbroe, 223 Mass. 139, 111 N. E. 709, L. R. A. 1916D, 933 (night watchman killed by police officers. who mistook him for a robber).

These and many other cases are cited on one phase or the other of the question in the various treatises and annotations. Bradbury's Work Comp. 587 et seq.; 1 Honnold, Work. Comp. §§ 87, 120; Dosker, Comp. Law, § 113; Chartres, Work Comp. 112-114; notes, L. R. A. 1916A, 64, 309; L. R. A. 1917D, 123; notes, 6 N. C. C. A. 1010-1030, 11, N. C. C. A. 235-254.

There are no cases in this state of direct value. State v. District Court, 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957, is cited. There an injury to a bartender who was struck by a glass thrown by a drunken customer was held to arise out of the employment. The fact that there was no personal altercation was noted. State v. District Court, 167 N. W. 283, is cited. There it was recognized that an injury coming from horseplay or practical joking might, under particular circumstances, be said to arise out of the employment. These cases suggest, as do others which we might cite, and perhaps particularly so those which have given compensation when the injury was caused by lightning or freezing or heat stroke, the liberal construction which we put in favor of the employee upon the language of the statute. It is a question of fault or negligence. It is a question of causal relation between the employment and the injury for which compensation is sought.

The cases which are here cited from various jurisdictions, and of which we have indicated briefly the nature, arose under statutes not limiting the meaning of the phrase, “arising out of employment," by excluding intentional acts of third persons. We find not more than half a dozen states having compensation acts with such a limitation, and the English act has not, and in none having such limitation do we find a construction. The important statement is that compensable injuries "shall not include an injury. caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment." The act of the unknown man was in its beginning solely to

gratify his personal lust, and it was not directed against the teacher because she was a teacher or as an employee or because of her employment. The employment may have given the occasion, and without the employment there might have been no opportunity, but there was no causal connection between the employment and the criminal act of the unknown assailant. Whether without the. clause excluding intentional injuries by third persons for personal reasons and unconnected with the employment there could be compensation we do not inquire. In any event the statutory exclusion is effective to prevent compensation.

In reaching this conclusion we have examined all the cases cited to us, and the carefully prepared and helpful memorandum of the trial court.

Judgment reversed.

SUPREME COURT OF NEBRASKA.

ESKELSEN
V.

UNION PACIFIC R. CO. (No. 20416.)*

1. COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT-ENGAGED IN "INTERSTATE COMMERCE."

The federal Employers' Liability Act (Act June 11, 1906, c. 3073, 34 U. S. Stat. 232) refers to "interstate commerce" in a practical sense; and the test is whether the employee at the time of the injury was engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof. Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 178, 36 Sup. Ct. 517, 60 L. Ed. 941, citing Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556. 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. (For other cases. see Commerce, Dec. Dig. § 27[1].)

(For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)

2. COMMERCE -- INTERSTATE COMMERCE — EMPLOYEES OF COMMON CARRIERS-REGULATION BY CONGRESS. Congress, in the exercise of its power over interstate commerce, and subject to the limitations prescribed in the Constitution, may regulate those relations of common carriers by railroad and their employees which have a substantial connection with interstate commerce, and, while both carrier and employee are engaged therein. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. Á. (N. S.) 44. (For other cases, see Commerce, Dec. Dig. § 58).

Appeal from District Court. Douglas County; Sears, Judge.
On petition for rehearing. Rehearing denied.

For former opinion, see 167 N. W. 408.

* Decision rendered, July 8, 1918. 168 N. W. Rep. 366. Syllabus by the Court.

Edson Rich and A. G. Ellick, both of Omaha, for appellant.
Weaver & Giller, of Omaha, for appellee.

DEAN, J. [1] Upon rehearing and re-examination we find that Kelley v. Great N. R. Co. (C. C.) 152 Fed. 211, cited in paragraph 3 of our former opinion, does not correctly state the law, and it is therefore withdrawn. The 1906 federal Employers' Liability Act therein construed was held unconstitutional in Employers' Liability Cases, 207.U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, subsequently the 1906 act was repealed, and on April 22, 1908, an amended act was passed (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). That act was held constitutional in Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, where it was said in substance, that the act was intended to regulate the relations of common carriers and their employees, which have a substantial connection with interstate commerce when both carrier and employee are engaged therein.

[2] The record in the present case, fairly construed, discloses that the parties were both actually engaged in interstate commerce at the time when plaintiff was injured. It is fundamental that in cases arising under the act in question the plaintiff must plead and prove that he and the defendant were actually engaged in interstate commerce at the time of the injury. With respect to this feature the Supreme Court of the United States has placed a reasonable construction on the act in recent decisions. In Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, it is said:

"Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion, * * and that the true test of employment in such commerce in the 'sense intended is, Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

The foregoing language is cited and approved in Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 178, 36 Sup. Ct. 517, 60 L. Ed. 941, in an opinion by Mr. Justice Hughes.

Our re-examination of the evidence convinces us as before that the trial court was right in overruling defendants' motion for a new trial. The application for a rehearing is denied and our former opinion, except as to paragraph 3 of the syllabus, is adhered to.

Rehearing denied.