APPELLATE COURT OF INDIANA. POLAR ICE & FUEL CO. ET AL. ข. MULRAY. (No. 10176.)* 1. WORKMEN'S COMPENSATION-INJURIES “ARISING OUT OF EMPLOYMENT." Where a servant, employed to check and collect for shortages of master's employees delivering ice, was shot and killed by one of such employees as a result of a quarrel over such collection, such servant's death arose out of the employment. 2. WORKMEN'S COMPENSATION ACT-REVIEW-QUESTION OF FACT. Although the inference that servant's death arose out of his employment is not the only one that might be drawn from the evidence, yet, being a reasonable conclusion, such finding by the Industrial Board must be upheld. Appeal from Industrial Board. Petition by Bessie Mulray against the Polar Ice & Fuel Company, employer, and the Globe Indemnity Company, insurer, for compensation for the death of her husband. From an award by the Industrial Board, the employer appeals. Affirmed. McKay & Merrell, of Indianapolis, for appellant. IBACH, C. J. While appellee's husband was at work at the plant of appellant another employee shot and killed him. Appellee filed her claim for compensation before the Industrial Board under the Compensation Act, and compensation was allowed. The only claim made by appelant is that the evidence does not sustain the finding of the Industrial Board that the accident arose out of decedent's employment. The uncontroverted facts are substantially the following: John Mulray, decedent, was employed by appellant to keep a record of ice taken from its ice plant to be sold by its drivers, and to require each to account for the quantity taken out by him when he returned after delivering each load. If there was any shortage it was Mulray's duty to collect the amount of the shortage in cash, and if not collected he then reported it to another bookkeeper, who charged the amount of the shortage against the delinquent driver, and the amount was deducted from his pay. Spencer, the man who shot Mulray, was one of the drivers, and some days before the shooting Mul*Decision rendered, April 2, 1918. 119 N. E. Rep. 149. ray had discovered that Spencer was short, and his attention was called repeatedly to it and a settlement requested by Mulray. On these occasions Spencer would become enraged and accuse Mulray of failing to keep his account accurately, and for some time prior to the fatal shooting he seemed to hold much enmity toward Mulray. On the day of the shooting he (Spencer) had been arguing the matter with the bookkeeper, and as he left her he said, "Yes, and I will fix John (meaning Mulray) too." He then went to the paymaster and argued with him about the pay which he had been given, and from there went to decedent, who was in the "scale office," and there created much disturbance, and sought to do Mulray harm. He there said to him, "You come out and I will fix you." He also called Mulray a son of a b———, and Mulray said two or three times, "You call me a son of a b-," and then Spencer said again, “You come out and I fix you." Mulray then said, "If you don't get out I will shoot you down," and went to a drawer under the scale and took out a revolver. When Spencer saw it he ran out the door, Mulray following, and as soon as he got out he fired two or three shots. He then returned, saying something about running Spencer up the railroad track. He took out the empty shells, reloaded the revolver, and replaced it. It was one used by the night watchman. Spencer went down on Virginia avenue and bought a second-hand revolver, and about one hour later came back to appellant's plant and shot Mulray as he was seated at his desk in the office. There is also some evidence showing that some of appellant's drivers were rough men, and particularly so on Saturday, pay day, when they generally drank liquor. This was particularly true of Spencer, with whom there had been considerable trouble about other conduct on his part, and he had manifested a malicious disposition. It is conceded by appellant that Mulray's death was the result of an accident received in the course of his employment with it, but the contention is that it did not arise out of such employment. [1] The rule is well established that a claim for compensation will not be denied simply because the accident occurred by reason of the unlawful and felonious act of some third person, if the employee actually sustained it by being specially and peculiarly exposed by the character and nature of his employment to the risk of the danger which befell him. In other words, when the injury results from the conditions surrounding an employee at the time of the accident and under which he was required to perform his duties, then generally speaking, it arises out of the employment. Union Sanitary Mfg. Co. v. Davis, 115 N. E. 676. The facts here show that decedent was performing a character of service for his employer which might at any time cause some personal grievance against him on the part of other employees with whom his duties required him to come in daily contact, so that when they were so angered at him or when under the influence of liquor they were liable to do him harm, still he was required to remain at his place of employment, surrounded by these dangers which finally led to and produced his death. Under such circumstances it may very properly be said that the accident which did occur was a risk reasonably incident to decedent's employment. Appellant relies principally upon the case of Union Sanitary Mfg. Co. v. Davis, supra, in which this court stated the same rule which has been declared by the several courts considering like questions. The facts of that case are clearly distinguishable from the present. There the claimant on his own account provoked a quarrel with another employee in another department, and with whom his employment did not require him to be associated or to come in contact, nor to whom he was required to go with any complaints, and it was made to appear that there was no causal connection between Davis' duties and his injuries. There are other distinguishing features, but this is sufficient. As bearing on some of the propositions now under consideration, the authorities cited in that case, however, are instructive. See, also United Paperboard, etc., v. Lewis, 117 N. E. 276; In re Loper, 116 N. E. 324. In the case last cited this court said: "The test to the right to compensation under such acts, in so far as concerns the element now under consideration, is whether the injury resulted from some peril incident to the employment; whether the cause of the injury, although not foreseen, may reasonably be deduced from the circumstances and surroundings peculiar to the place, and under which the workman was required to perform his labors, regardless of whether such perils or surroundings involve negligence on the part of the employer." The evidence also shows that Mulray was a peaceable man, entertaining no ill will against Spencer, while the latter was of a quarrelsome disposition, and for at least ten days before the shooting occurred as hertofore disclosed by the evidence had made threats against decedent to do him harm, both to him personally and to others. One witness stated, "Whenever decedent called his attention to any shortage he got mad and sought a personal encounter with him [Mulray]." Yet it was decedent's express duty to deal with all these drivers daily, and about a subject which might and did often awaken in them a spirit not only of resentment, but of actual antagonism, because it affected a matter of deep interest to them-their pay. In this particular instance it is quite reasonable to infer that the shooting occurred by reason of decedent's persistent endeavor to collect shortages due his employer, and this is particularly true when considered in connection with the character of the man as shown by the record who did the shooting. [2] While it may be said that the inference that the unfortunate accident in the case was the result of a risk reasonably inci dent to Mulray's employment, and therefore arose out of his employment, is not the only inference which might be drawn from the evidence, yet it is a very reasonable one, and since the Industrial Board has so concluded, we are required to uphold the award. Award affirmed. APPELLATE COURT OF INDIANA. INDIANAPOLIS ABATTOIR CO. V. BRYANT. (No. 10166.)* 1. WORKMEN'S COMPENSATION-AUTOPSY-JURISDICTION. Refusal by next of kin to consent to an autopsy, a right given an employer by the Workmen's Compensation Act (Laws 1915, c. 106) § 27, does not deprive the Industrial Board of jurisdiction to proceed to a final disposition of the case. 2. WORKMEN'S COMPENSATION-AUTOPSY-WAIVER. Although next of kin refused consent, the employer waived the right to an autopsy granted by Workmen's Compensation Act, § 27, where it made no objection before the Industrial Board until after the trial and award. 3. WORKMEN'S COMPENSATION ACT-AUTOPSY. Workmen's Compensation Act, § 27, giving employer the right to require an autopsy, does not give the employer right to an autopsy where cause of death is clearly apparent, and the right is to be exercised with caution. 4. WORKMEN'S COMPENSATION ACT-AUTOPSY-REFUSAL. Where next of kin told agent of employer that she would not allow an autopsy unless absolutely necessary, but that she would talk with the employer, there was no unequivocal refusal to grant the right to do so, under Workmen's Compensation Act, § 27, giving the employer that right. Appeal from Industrial Board. Proceeding by Rebecca Bryant under the Workmen's Compensation Act to obtain compensation for the death of John Bryant, opposed by the Indianapolis Abattoir Company, the employer. There was an award by the Industrial Board of Indiana, and the employer appeals. Affirmed. Taylor, Carter & Wright, of Indianapolis, for appellant. IBACH, C. J. This is an appeal from the finding and award of the full Industrial Board. The board found the facts to be sub *Decision rendered, March 20, 1918. 119 N. E. Rep. 24. stantially as follows: On June 20, 1917, one John Bryant was in the employment of appellant at an average weekly wage of $12.85. On said date he received a personal injury by accident arising out of and in the course of his employment, resulting in his death on July 1, 1917. Appellant had actual knowledge of the accidental injury at the time it occurred, administered to him first-aid treatment at the time of the injury, furnished him an attending physician on June 23, 1917, and filed a report of such injury with the board on June 29, 1917. Decedent left surviving him as his sole and only dependent appellee. That decedent's body was embalmed on the evening of July 1, 1917, and on the afternoon of July 2, 1917, appellant made a formal request of appellee for an autopsy upon the body of decedent, whereupon she informed it that she did not desire an autopsy, and would not consent to one unless it were absolutely necessary. Appellant did not follow up such request, and did not advise her that an autopsy was necessary. At the time the autopsy was requested the body had been embalmed, and it would have availed nothing then in the determination of the cause of the death. The provision of the statute here involved reads: "The employer, or the Industrial Board, shall have the right in any case of death to require an autopsy at the expense of the party requiring same.' Section 27, Indiana Workmen's Compensation Act (Acts 1915, p. 399). Appellant contends, in effect, that said provision confers upon employers an express mandatory right to require an autopsy in the event of the death of an employee which must be respected; that the death in and of itself vests such right, and when it is asserted by an employer it cannot be disregarded; that the board was without power in this case to make a final disposition until such autopsy was held. It is further contended: "That "the evidence discloses and is uncontradicted that the employer asserted the right of autopsy by making demand upon the next of kin, who, in law, had the custody and the legal right to dispose of the body of the deceased, one of whom was appellee, and this right upon such request and demand was absolutely and unequivocally denied; that it had done all that the law required it to do for the purpose of enforcing its right to an autopsy." On the other hand, appellee insists that the evidence does not show an absolute refusal, and in any event appellant was not harmed thereby. [1, 2] Appellant has raised a jurisdictional question, namely, the right of the board to proceed to a final disposition of the case without requiring an autopsy. We will first determine such question. It will be observed that the statute in question contains no provision for making an autopsy further than the mere grant of the right, and provides no penalty or condition in case the claim |