Opinion
May 3, 1962.
Gabriel Kantrovitz ( Sherwin L. Kantrovitz with him) for the employee.
Timothy H. Donohue for the insurer.
Decree affirmed. The employee brought this claim for compensation for injuries which he alleges arose out of his employment. The single member found these facts: On August 29, 1960, the claimant was working as a chef in a restaurant of the insured. The claimant had an argument with another employee. A bus boy, also employed by the insured, injected himself into the argument. A fist fight between the claimant and the bus boy ensued. After that fight in which "[t]he claimant was worsted" the claimant "picked up an 18 inch, 2-pronged barbecue fork and renewed the fight and assault" on the bus boy. The claimant suffered a stab wound in the back and an injury over his eye. He received hospital and medical treatment for his injuries. The single member found that "when the fist fight ended and claimant renewed the assault he was guilty of serious and willful misconduct" and that the injury to the claimant "did not arise out of the conditions of his employment." The employee's claim for compensation was dismissed. The findings and decision of the single member were affirmed by the reviewing board. From a decree of the Superior Court in accordance with the board's decision, the employee appealed. There was no error. The board's findings were supported by the testimony and were not tainted by error of law. Van Bibber's Case, 343 Mass. 443, 447.