Federal Rubber Manufacturing Co. v. Havolic

156 N.W. 143, 162 Wis. 341, 1916 Wisc. LEXIS 149

• Court: Wisconsin Supreme Court
• Decided: February 1, 1916
• Status: Published

Opinion

WiNsnow, O. J.

This court has endeavored to give to the Workmen’s Compensation Act a broad and enlightened construction, to the end that it may accomplish to the fullest extent its beneficent purpose. It is to be remembered, however, that this purpose was to compensate for injuries resulting from one class of accidents only, namely, industrial accidents. There is liability only “where, at the time'of the accident, the employee is performing service growing out of and incidental to his employment.” Sub. (2), sec. 2394 — 3, Stats. 1915. It was held in Hoenig v. Industrial Comm. 159 Wis. 646, 150 N. W. 996, after full argument and consideration, that the injuries covered by the act are such as “are incidental to and grow out of the employment.” This seems practically to mean the same thing as the expression in the English compensation act “arising out of and in the course of the employment.”

Under the English act it has been held that accidents resulting from “larking” or playing with machinery cannot be held to arise out of the employment. Furniss v. Gartside, 3 Butterworth’s Workm. C. C. 411; Cole v. Evans, 4 id. 138.

The Massachusetts act provides compensation for an injury which arises “out of” the employment, and it was well said by the Massachusetts supreme court in McNicol's Case, 215 Mass. 491, 102 N. E. 697:

“The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not h.ave been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

The “causative danger” in the present case does not come within the test here prescribed nor anywhere near it.

Had the claimant hurt himself in some way while he was handling the hose in the effort to remove the dust from his clothes a different question would have been presented. There was proof that employees were accustomed to brush their clothes in this manner without rebuke from' the foreman, thorigh there was a formal prohibition of such action, and we express no opinion as to the rights of the parties had the accident happened in this way. But how injuries resulting from such inexcusable and revolting horse-play as this can be said ■to be incidental to the employment we are unable to understand. It is equally impossible to understand how it can be said that tbe claimant at tbe time of tbe accident was performing service “growing out of and incidental to bis employment.”

By the Gourt. — Judgment reversed without costs, and action remanded witb directions to reverse tbe award of the Industrial Commission.