ant took no part, except that he advised two of the participants not to fight and two other employees struck him on the head, one with a shovel and the other with a sledge hammer. All the tools belonged to the employer. The claimant testified that he did not know of any other quarrels over the tools on any other days, and that the day he was hurt was "the first time he ever saw a fight over the tools and any striking." There is nothing in the record to show that there had been any previous quarrel between the men over the tools.

If we asume without deciding that the claimant was injured in the course of his employment, the question remains whether the injury arose out of it. It is the contention of the claimant that the risk of being assaulted by laborers of different nationalities working on a railroad track who became involved in a quarrel over the use of tools was an ordinary risk of such an employment and was incidental to the work. It is also contended that the claimant's injuries were received in an effort to stop the fight between fellow employees, which effort was in the interest of his employer.

It cannot reasonably be said that the danger of injury was incidental to the employment because men of different nationalities were engaged in the work. The evidence shows that there had been no previous quarrel between the workmen on account of the use of the tools. Ordinarily assault by third persons cannot be considered as incidental to the employment. But where the assault is one which might be reasonabbly anticipated because of the general character of the work, or of the particular duties imposed upon the workman, injuries resulting therefrom may be found to arise out of or in the course of the employment. See cases cited in L. R. A. 1916A, 239. However commendable may have been the claimant's act, in endeavoring to dissuade his fellow workmen from fighting, it cannot be said to have been incidental to his employment; it was no part of the duties imposed upon him, and the assault could not reasonably have been anticipated because of the character of the "work. The case is clearly distinguishable from McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, where the employee was killed by a drunken fellow workman, who was known to the superintendent in charge of the work to have the habit of drinking to intoxication and when in that condition to be quarrelsome, dangerous and unsafe to work with; and from Reithel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304, where the superintendent of a mill, whose duty it was to order from the premises persons who had entered without permission, was shot and killed by a trespasser while he (the deceased) was engaged in the performance of his duty; and from Craney's Case, 232 Mass. 149, 122 N. E. 266, 15 A. L. R. 584, where the head waiter of a hotel was shot and killed by a waiter serving under him whom he had discharged, and who "was made ugly by drinking liquor," was an habitual drinker, and usually carried a pistol, which facts were generally known at the hotel. It is plain that the claimant's injuries were not the result of any special risk incident to his employment; there was no causal connection between the conditions under which his work was required to be performed and his injury. Accordingly he is not entitled to compensation under the act McNicol's Case, supra; Harbroe's Case, 223 Mass. 139, 111 N. E. 709, L. R. A. 1916D, 933; Moore's Case, 225 Mass. 258, 114 N. E. 204; Francis H. Lee's Case, 238 Mass. 134 N. E. 268; Mountain Ice Co. v. McNeil, 91 N. J. Law, 528, 103 Atl. 184, L. R. A. 1918E, 494; Jacquemin v. Turner & Seymoure Manuf. Co., 92 Conn. 382, 103 Atl. 115, L. R. A. 1918E, 496; Armitage v. Lancashire & Yorkshire Railway, [1902] 2 K. B. 178; Blake v. Head, 106 L. T. Rep. 822; 5 B. W. C. C. 303; Mitchinson v. Day Brothers, [1913] 1 K. B. 603.

In view of the conclusion reached, it is unnecessary to consider whether the claimant has elected to rely upon his remedy against a

third person for damages. St. 1911, c. 751, pt. III, § 15, as amended by St. 1913, c. 448, § 1; G. L. c. 152, § 15.

Decree affirmed.

RAMONDETTA'S CASE.

IN RE EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED. (Supreme Judicial Court of Massachusetts. Essex. March 2, 1922.) 134 Northeastern Reporter, 249.

1. MASTER AND SERVANT LOSS OF FINGERS HELD NOT COMPENSABLE AS A SEVERANCE "AT OR ABOVE THE SECOND JOINT."

Under St. 1911, c. 751, pt. 2, § 11, now G. L. c. 152, § 36, cl. "c," providing compensation for 25 weeks for the loss by severance at or. above the second joint of two or more fingers, the distal or first joint is the one farthest from the body, and the words "at or above the second joint" mean at or above the middle joint, and a severance between the middle joint and the finger tip is not within this provision of the statute. (For other cases, see Master and Servant, Dec. Dig. § 385[12].)

2. MASTER AND SERVAST-FINDING OF COMPENABLE LOSS OF FINGERS CONCLUSIVE.

In a compensation proceeding, the place where the complaint's fingers were severed was a question of fact, and where the finding of the single member of the Industrial Accident Board that the claimant had not suffered the loss by severance of two or more fingers at or above the second joint was warranted by the evidence, it must stand.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

3. MASTER AND SERVANT HAND HELD NOT INCAPABLE OF USE WITHIN COMPENSATION ACT.

The rational inference from a finding of the Industrial Accident Board that the distal phalanges of three fingers and half of the middle phalanges were severed and that the employee was entitled to compensation in a certain amount, being the specified compensation for 12 weeks, was that the employee's hand was not incapable of use, within St. 1911, c. 751, pt. 2, § 11, cl. "e," now G. L. c. 152, § 36.

(For other cases, see Master and Servant, Dec. Dig. § 385[12].)

4. MASTER AND SERVANT

FINDING OF COMPENSABLE

LOSS OF USE OF HAND CONCLUSIVE.

Where the distal phalanges and half of the middle phalanges of the second, third, and fourth fingers were severed, the question whether the hand was thereby so injured as to be useless or permanently incapable of use, within St. 1911, c. 751, pt. 2, § 11, cl. "e," now G. L. c. 152, § 36, was one of fact, and where the finding was not unwarranted, the judge's ruling, as a matter of law, that the hand was useless, cannot stand.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Essex County.

Proceedings under the Workmen's Compensation Act by Annie Ramondetta for compensation for injuries, opposed by the Ayer Mills, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. Compensation was awarded, and the award increased by the superior court, and the insurer appeals from the decree and from orders ruling that the claimant was entitled to 25 weeks' compensation as for loss of a hand and denying a motion to vacate the decree. Reversed and decree entered in accordance with the findings of the Board.

The single member of the Industrial Accident Board who conducted the hearing found that the claimant had not suffered the loss by severance of two or more fingers at or above the second joint; that there was a certain portion、of the phalange in each finger left below the second joint; and that, while permanently incapable of use as phalanges they added sufficient to the use of the fingers to preclude a finding that the fingers had been lost at or above the second joint. The full Board awarded compensation for 12 weeks in addition to disability compensation. The court found for plaintiff and entered a decree for $223.25, being compensation for 25 weeks. The insurer moved to revoke the finding and decree, and the court denied the motion to vacate the decree, but revoked the finding, and in lieu thereof made an order ruling, as a matter of law, that the claimant had lost the second joint, that the hand was useless, and that she was entitled to 25 weeks' compensation.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellant.

W. C. & E. J. Ford, of Lawrence, for appellee.

CROSBY, J. The claimant, a spinner, employed in the mill of the subscriber, was injured while cleaning the end of the frame, the fingers of her right hand becoming caught between the chain and sprocket gear. As a result of the injury the end, or distal phalanges and one-half of the next, or middle phalanges, of the fore, middle and ring fingers were severed; that is, one and one-half phalanges of each of these fingers are gone. On each the end joint is gone; the next or middle joint remains. The single member of the Industrial Accident Board found that the claimant was entitled to receive $140.33 for total disability; he further found:

* *

* *

"That this girl has not suffered the loss by severance of two or more fingers at or above the second joint, * that there was a a certain portion of the phalange in each finger left below the second joint. These phalanges, * while permanently incapable of use as phalanges, are still of such a character that they did sufficient to the use of the several fingers as to preclude a finding that the fingers had been lost at or above the second joint."

The Industrial Accident Board upon review found;

"That total disability ended on July 12, 1918; that compensation should be paid to that date, at the rate of $8.93 per week, or a total of $140.33."

No question arises respecting the correctness of this finding. The Board further found;

"That the distal phalanges of the second, third and fourth fingers, and half of the middle phalanges of these fingers are severed and the employee is entitled to additional compensation, being $107.16. The total sum due under this decision is $247.49."

Thereafter a decree was entered by a judge of the superior court in favor of the employee for $223.25, "minus $107.16 already paid on account of specific compensation. This was the equivalent of twenty-five weeks' additional compensation. A motion to vacate the decree was filed by the insurer, and denied; and the insurer appealed from the decree.

39 Vol. IX-Comp.

The judge made the following ruling:

"I rule as a matter of law on the papers before me that the petitioner has lost the second joint, that the hand is useless, and that she is entitled to twenty-five weeks' compensation, being two hundred and twenty-three 25/100 dollars."

*

The sole issue before the Board upon the question of additional compensation was whether the claimant was entitled to compensation for twelve weeks or for twenty-five weeks. This must be determined under the proper interpretation of St. 1911, c. 751, pt. 2, § 11, now G. L. c. 152, § 36.

[1, 2] Clause "c" of that section provides that

*

"For the loss by severance at or above the second joint of two or more fingers, * * of the same hand," the employee is entitled to compensation for a period of twenty-five weeks.

Clause "d" provides that—

"For the loss by severance of at least one phalange of a finger, * *"the employee is entitled to compensation for a period of twelve weeks.

*

There was medical testimony that the distal or first joint is the one farthest from the body; and we are satisfied that the act must be so construed. It is plain that the first joint is that nearest to the tip of the finger, and that the words in clause "c" "at or above the second joint" mean at or above the second or middle joint. As the claimant's fingers were severed not "at or above the second joint" but nearer the finger tip than that point, it is clear that she is not entitled to compensation under clause "c." The single member's finding that she had "not suffered the loss by severance of two or more fingers at or above the second joint," was right, and the Board in effect also so found. These findings of fact must stand as they were fully warranted by the evidence. The correct interpretation of clause "c" apart from any evidence is that the second joint is the middle joint, or the second joint counting from the tip of the finger. The place where the fingers were severed was a question of fact; accordingly the ruling that the claimant had lost the second joints of the injured fingers was wrong, and the finding of the Board was right. [3, 4] The judge further ruled "that the hand is useless" (clause "e"). That ruling cannot stand. The finding of the single member was to the effect that the hand was not so injured as to be useless or permanently incapable of use; the Board on review failed to find such incapacity; and the rational inference to be drawn from the finding is that the hand was not incapable of use. The question was one of fact; and the finding was not unwarranted. Meley's Case, 219 Mass. 136, 106 N. E. 559; Lacione's Case, 227 Mass. 269, 116 N. E. 485; Jakutis' Case, 238 Mass. 308, 130 N. E. 637.

Decree reversed.

Decree to be entered in accordance with the findings of the Industrial Accident Board.

SULLIVAN'S CASE.

(Supreme Judicial Court of Massachusetts. Suffolk. March 4, 1922.) 134 Northeastern Reporter, 393.

1. MASTER AND SERVANT-FINDING OF COMPENSABLE INJURY TO EYE SUSTAINED.

Evidence in a workman's compensation proceeding on the question of causal connection between the slipping of a barrel, which struck employee's knee, and the separation of the retina of his right eye, held to

warrant a finding that the injury arose out of and in the course of his employment.

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

2. MASTER AND SERVANT-COMPENSATION INSURER HELD NOT PREJUDICED BY DELAY IN GIVING NOTICE OF CLAIM.

Where the slipping of a barrel, which struck an employee's knee, caused a separation of the retina on September, 9th, but the employee continued to work until September 18th, and did not know until the 21st that the retina was detached, and did not until later associate this injury with the slipping of the barrel, and a fellow employee was at work with him when the barrel slipped, and the employer's superintendent knew, shortly after the employee stopped work, that he had trouble with his eye that was caused in some way by his employment, delay in giving notice held not to have prejudiced insurer, within St. 1920, c. 223, § 1, now G. L. c. 152, § 44.

(For other cases, see Master and Servant, Dec. Dig. § 398.)

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Patrick Sullivan for compensation for an injury to his eye, opposed by the Potter Drug & Chemical Company, employer, and the Royal Indemnity Company, insurer. Compensation was awarded, and decree therefor entered, and the insurer appeals. Affirmed.

The questions before the Industrial Accident Board were whether the statutory notice of injury was given; if not, whether knowledge was conveyed as soon as practicable; whether the employee received a personal injury arising out of and in the course of his employment; the period of incapacity; and whether or not the employee was entitled to specific compensation for the loss of vision in his right eye. The evidence showed a separation of the retina. The only accident shown consisted in the slipping of a barrel, which the employee and another were upending, striking the employee's knee. A member of the Industrial Accident Board found that the employee received an injury in the course of and arising out of his employment; that as the result of the injury he had been totally incapacitated up to the date of a hearing; that the vision of his right eye had been reduced to less than one-tenth of normal vision with glasses as the result of the injury; that notice was not given until on or about October 29th (the injury having been sustained on September 9th); but that the insurer had not been prejudiced by the delay, and the claim was not barred. His findings were adopted by the board, except that the board did not find that all capacity for work had ceased, but reserved the rights of the parties after the date of the hearing for further hearing.

T. H. Calhoun and Edward J. Sullivan, both of Boston, for appellant. John L. Hurley, of Boston, for appellee.

CARROLL, J. In this proceeding under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 571) the employee was awarded compensation; and the insurer appealed, on the ground that there was no causal connection between the alleged accident and the injury claimed, and that the employee has not sustained the burden of proving that the insurer was not prejudiced by the employer's failure to give notice as soon as practicable.