Newport Hydro Carbon Co. v. Industrial Commission

Tbe following opinion was filed May 21, 1918: RoseNberry, J. Plaintiff’s claim is that tbe circuit court erred in entering judgment affirming tbe award of tbe Industrial Commission for tbe reason that it clearly appears that tbe deceased, Joseph Kohn, was not “performing service growing out of and incidental to bis employment” (sub. (2), sec. 2394 — 3, Stats.) at tbe time be sustained tbe injury which resulted in bis death. It is tbe claim of tbe plaintiff that this case is ruled by Federal R. M. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143. In that case tbe claimant was employed in a rubber tire factory, and bis duties did not require him to use or come in contact with tbe compressed air system, and be knew that its use by employees to clean their clothes was forbidden. On quitting work for tbe day be took down tbe air hose and began to blow tbe dust from bis clothing. A fellow workman, taking tbe hose from bis bands, proceeded to clean tbe claimant’s back, and as a joke held tbe nozzle against tbe claimant’s body, resulting in a rupture of bis in [633] testines. It was there held that tbe employee was not at tbe time of tbe accident performing service growing out of and incidental to bis employment, and compensation was denied, and tbe court approved tbe principle laid down in McNicol's Case, 215 Mass. 497, 102 N. E. 697, to tbe effect that “the causative danger must be peculiar to tbe work and not common to tbe neighborhood. It must be incidental to tbe character of tbe business and not independent of tbe relation of master and servant. It need not have been foreseen or expected, but after tbe event it must appear to have bad its origin in a risk connected with tbe employment, and to have flowed from that source as a rational consequence.” As was pointed out by tbe trial court, “In tbe case at bar tbe duty of tbe decedent to bis employer required him to use and to come in contact with tbe tools and wires which caused bis death. In tbe Havolic Case cited above tbe court pointed out that ‘Had tbe claimant hurt himself in some way while be was handling tbe hose in tbe effort to remove tbe dust from bis clothes, a different question would have been presented.’ ” Here tbe deceased, in tbe usual course of bis duty, was required to work upon tbe conduit at tbe place in question, and at tbe time of bis death was engaged in tbe performance of bis duties and bad not in tbe slightest degree departed therefrom, and while so engaged be was instantly killed. We think it must be said under such circumstances that tbe deceased was performing a service growing out of and incidental to bis employment. Tbe accident was one that followed as a natural incident to tbe work performed. Tbe hazard was one to which tbe decedent would not have been equally exposed apart from bis employment. Tbe danger was one peculiar to tbe work and not common to tbe neighborhood. In this case if tbe deceased bad not resumed bis work be would not have been injured. It was necessary for him in carrying on bis work to do tbe act which resulted in bis [634] death. Ilow can. it be said under such circumstances that injuries sustained by the deceased did not grow out of and were not incidental to his employment ? The fact that the wires were adjusted by a fellow workman does not alter the situation in this case, even if he did it for the purpose of playing a joke on the deceased. Knopp v. American C. & F. Co. 186 Ill. App. 605. See note, L. R. A. 1916A, 232, 240. The deceased was not a party to the joke or larking of his fellow workman. In the Knopp Case the court said: “How can his rights be affected by the fact that the man 'who placed the can on the die says he did so ‘just to have some fun.’ So far as the proper continuance of the work was concerned, it was immaterial whether the obstruction was placed there by Nóvale for fun or was placed there by someone by mistake or came there through some accident. Had Knopp been engaged in joking with Novak or playing with him, and in carrying on their pranks Novak would put the can on the die and Knopp remove it, both entering into the spirit of the transaction in concert, it may be that appellee could not be held to have received his injury in the course of his employment. But in this case appellee took no part in the joking himself, but proceeded to clear the die of the obstruction upon it so that he could continue the work he was employed by appellant to do, and what he did was for the benefit of his employer.” Here the fact that Pearson adjusted the wires for the purpose of playing a joke on the deceased did not change the situation of the deceased and make outside of his employment that which otherwise grew out of and was incidental to his employment. - So far as the deceased was concerned, he having no part in the so-called joke, it was immaterial whether the wires dropped accidentally or were placed in position by Pearson. The fact that deceased had suggested to Pearson that Pearson touch the angle iron does not affect the result. The claim is that he thereby invited retaliation. If that be [635] conceded it does not alter the fact that at the time he received the injury he was performing a service growing out of and incidental to his employment within the exact terms of the law. If what the deceased did can properly he described as joking or larking, his participation therein had terminated and the joke was at an end some time before the injury, so far as he knew. We think the circuit court properly affirmed the award. By the Court. — Judgment affirmed. Owen, J., took no part. A motion for a rehearing was denied, without costs, on July 21, 1918.