Opinion
March, 1936.
Appeal from State Industrial Board.
The Board has found that it is alleged that while claimant was engaged in the regular course of his employment he was touched by an unknown person, and, believing a fellow-employee working in back of him had done so, he turned and called this fellow employee a vile name, whereupon the latter struck him, causing him to fall to the ground and sustain injuries which caused him to become disabled. It also found that claimant initiated the assault upon himself, was the aggressor and that the assault did not arise out of and in the course of his employment. It would appear that the situation here was substantially the same as in Matter of Verschleiser v. Stern Son ( 229 N.Y. 192). If such was the fact, then an award should have been made. The present state of the record is quite unsatisfactory and the matter is remitted for the purpose of obtaining further evidence as to who or what provoked the claimant to apply the epithet to his fellow-servant. Decision reversed and matter remitted, with costs to appellant against the State Industrial Board to abide the event. Hill, P.J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.