#### Federal Rubber Manufacturing Company, Appellant, vs. Havolic and another, Respondents.

*January 14*

February *1, 1916.*

*Workmen's compensation: When compensation allowed: Injury from horse-play: -“Service growing out of and incidental to his employment.”*

1. To be within the "Workmen’s Compensation Act an injury to an employee 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.

2. The claimant, an employee in a rubber tire factory whose duties did not require him to use or come in contact with the com- ' pressed air system, and who knew that its use by employees to clean their clothes was forbidden, on quitting work for the day took down the air hose and began to blow the dust from his clothes. A fellow-workman, taking the hose from his hands, proceeded to clean his (the claimant’s) back, and as a joke held the nozzle to his rectum and thereby ruptured his intestines. *Held,*that the injury was not one incidental to the employment, nor was the claimant at the time “performing service growing out of and incidental to his employment,” within the meaning of sub. (2), sec. 2394 — 3, Stats. 1915.

[ 3. There being proof that, although it was formally prohibited, employees were accustomed to use the hose to brush their clothes, without rebuke from the foreman, no opinion is expressed as to what the rights of the claimant would have been had he hurt himself while he was handling the hose for that purpose.]

Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNs, Circuit Judge.

*Reversed.*

This is an appeal from a judgment confirming an award óf tbe *Industrial Commission*in favor of tbe respondent. *Havolic*under tbe Workmen’s Compensation Act (sees. 2394 — 1 to 2394 — 31, Stats. 1915).

Tbe essential facts are not disputed. *Havolic*worked for tbe plaintiff in its rubber tire factory, bis duties being to feed stock into a tubing machine. • In tbe department in wbicb be worked there was a compressed air system with hose *342and nozzles attached for use in some of the factory operations, but *ITavolic*had no duty which required him either to use or come in contact with the system or the hose. Employees were forbidden to use the hose for the purpose of cleaning their clothes and *Havolie*knew of the prohibition, but many, employees did do so, and on the evening of the accident Havolie, on quitting work, took down the hose from its place .and began to use it to blow the dust from his clothing. He had cleaned a part of his clothing when a fellow-workman came up and (whether of his own motion or at *Havolie’s*request is a matter in dispute) took the hose from *Havolie’s*hand and proceeded to clean his *(Havolie’s)*back. The air in the hose was at a pressure of nearly or quite eighty pounds, ,and the fellow-workman, apparently by way of practical joke, held the nozzle to *Havolie’s*rectum, with the result that the intestines were ruptured. *Havolie*was compelled to go to the hospital for several weeks and was totally disabled for seventeen weeks. For these injuries the award complained of was made.

For the appellant there was a brief by *Robert R. Freeman*and *Henry J.*Bendinger, and oral argument by *Mr. Ben-dinger.*

For the respondent *Industrial Commission*there was a brief by the *Attorney General*and *Winfield W.*Gilman, assistant attorney general, and oral argument by *Mr. Gilman.*

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, *343Stats. 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 *344said 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.*