#### RUTH ASHLEY et al. v. F-W CHEVROLET CO. et al.

(Filed 23 September, 1942.)

1. Master and Servant §§ 40d, 40e—

Where, in defendants’ garage, it was customary for the employees to furnish their own tools and to borrow from each other, and an altercation between two employees over their tools occurring while they were working, resulting in an assault by one which killed the other, held,, a finding by the Industrial Commission that such assault was an accident arising out of and in the course of the employment sufficient to sustain the award.

2. Same—

Under the Workmen’s Compensation Act, an injury arises out of the employment, when it occurs in the course of employment and is a natural or probable consequence or incident of it, and if the injury had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected.

3. Same—

If one employee assaults another solely from anger, hatred, revenge, or vindictiveness, not growing out of or as an incident to the employment, *26the injury is to be attributed to tbe voluntary act of tbe assailant, and not as an incident of tbe employment; but if tbe assault be incidental to- some duty of the employment, the injuries suffered thereby maj' properly be said to arise out of the employment.

4. Same—

When.the record contains evidence to support either a finding that the accident did or did not arise out of and in the course of employment, the findings of the Industrial Commission are conclusive on appeal.

Appeal by defendants from Bobbitt, J., at April Term, 1942, of SmtRY.

Proceeding under 'Workmen’s Compensation Act to determine liability of defendants to tbe surviving widow and minor son, sole dependents of Yanious Z. Asbley, deceased employee.

Yanious Asbley and Spencer Marlowe were employed by tbe F-W Chevrolet Company in its service garage at Elkin, N. C., tbe former as mechanic, tbe latter as helper.

Tbe Industrial Commission, in addition to tbe jurisdictional determinations, made these essential findings :

1. That it was a custom in tbe shop for tbe workers and employees, and especially tbe deceased, Yanious Asbley, and Spencer Marlowe, to furnish their own tools with which they worked, or at least a part of them.

2. That it was a custom between Yanious Asbley and Spencer Marlowe to borrow each other’s tools to be used in tbe work which they were doing for tbe defendant; that Yanious Asbley bad a box of tools, and Spencer Marlowe bad only two or three tools that be used and, therefore, Spencer Marlowe borrowed tools frequently from Yanious Asbley to be used in tbe work for which they were employed to do.

3. That a few days prior to 23 May, 1940, Yanious Asbley bad become tired of allowing Spencer Marlowe to use bis tools and was keeping bis tools in a tool box with a lock on tbe same; that on 23 May, 1940, about 2 :00 or 3 :00 o’clock in tbe afternoon Vanious Asbley was working on a ear in tbe garage of tbe defendant and Spencer Marlowe was working on another ear near-by, and in tbe course of their work Spencer Marlowe passed near-by tbe tool box belonging to Yanious Asbley and remarked to Yanious Asbley, “You bad better lock your tool box, you usually do,” and Yanious Asbley replied that it was bis “damn tool box,” and be would lock it if be wanted to; and, that as a result of tbe feeling engendered between tbe two men about tbe tools to be used by them in carrying on their duties, and immediately after tbe exchange of said words and while on tbe premises of tbe defendant company and while about tbe duties of their employment, Spencer Marlowe struck Yanious Asbley in tbe back of tbe bead either with his fist or some object and fractured bis *27skull, knocking bim to the floor, and from which blow the said Yanious Ashley died within a few hours.

4. That the manager of the defendant, Chevrolet Company, knew that his employees, including Yanious Ashley and Spencer Marlowe, furnished a portion of their own tools with which they did their work in the plant of the defendant, and that they frequently borrowed each other’s tools.

5. The Commission . . . finds as a fact that the injury sustained by Yanious Ashley .... arose out of and in the course of his employment.

Upon the facts found, the Commission awarded compensation, and this was affirmed on appeal to the Superior Court. From this latter ruling, the defendants appealed, assigning error.

William M. Allen and Hoke F. Henderson for plaintiffs, appellees.

Jones & Smothers for defendants, appellants.

Stacy, C. J.

Did Ashley’s death result from an injury by accident arising out of and in the course of his employment? The record permits an affirmative inference.

By the terms of the Workmen’s Compensation Act, a compensable death is one which results to an employee from an injury by accident arising out of and in the course of the employment. Slade v. Hosiery Mills, 209 N. C., 823, 184 S. E., 844. An injury is said to “arise out of” the employment when it occurs in the course of the employment and is a natural or probable consequence or incident of it. Harden v. Furniture Co., 199 N. C., 733, 155 S. E., 728. “There must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one’ which ought to have been foreseen or expected.” Conrad v. Foundry Co., 198 N. C., 723, 153 S. E., 266.

In the case of injuries inflicted by assault, the rule is that if one employee assault another solely from anger, hatred, revenge, or vindictiveness, not growing out of or as an incident to the employment, the injury is to be attributed to the voluntary act of the assailant, and not as an incident of the employment. Martin v. Sloss-Sheffield Steel & Iron Co., 216 Ala., 500, 113 So., 578. But if the assault be incidental to some duty of the employment, the injuries suffered thereby may properly be said to arise out of the employment. Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn., 382, 103 Atl., 115. The statement of the rule, as' thus distilled from the authorities, is simple enough. Its application is sometimes fraught with puzzling effect. Here persuasive arguments may be advanced in favor of either conclusion, and were so *28advanced on the hearing. When the record is such as to support either result, the findings of the Commission are controlling. Lockey v. Cohen, Goldman Co., 213 N. C., 356, 196 S. E., 342; Lassiter v. Tel. Co., 215 N. C., 227, 1 S. E. (2d), 542.

But for the custom or practice of borrowing tools in the plant, the incident here in question might not have occurred. Hence, it is permissible to infer that the injury by accident which resulted in harm to the employee arose out of the employment as an incident to the method of carrying on the work in the shop. It is clear that it occurred in the course of the employment. Conrad v. Foundry Co., supra.

The result is an affirmance of the judgment below.

Affirmed.