#### Newport Hydro Carbon Company, Appellant, vs. Industrial Commission of Wisconsin and another, Respondents.

*May 4*

July *27, 1918.*

*Workmen’s compensation: Conditions of liability: “Performing service growing out of and incidental to Ms employment:” Death caused by practical joke.*

While an electrician was getting a drink, charged testing wires were placed, by a fellow workman, in contact with the tools which he was using, and when he resumed work he received a fatal shock. His duty to his employer required him to work at that place and to use stnd to come in contact with the tools and wires which caused his death. *-Held,*that he-was at the time “performing service growing put of and incidental to his employment,” within the meaning of sub. (2), sec. 2394 — 3, Stats., and that the injuries sustained grew out of and were incidental to the employment, even though his fellow workman had adjusted the wires for the purpose of playing a joke on him, supposing he would receive only a slight shock, and, even though he himself had a few minutes earlier suggested that the fellow workman touch a certain piece of iron which was perhaps charged, his own participation in the joking or larking, if such it was, having, terminated some time before the injury. *Federal R. M. Co. v. Havolic,*162 Wis. 341, distinguished.

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

*Affirmed.*

Workmen’s compensation. On April 20, 1917, the deceased, Joseph Kohn, was an electrician and employed by the plaintiff as a part of an electrician’s gang consisting of eight men. On that day Ilohn and Pearson, a fellow workman, were engaged in cutting a piece of conduit to be used in the installation of a motor. The piece upon which they were working was fastened in a vise which was attached to a bench about thirty inches high and thirty-six inches wide. On the wall back of the bench was a conduit out of which ran an ordinary piece of electric lamp cord carrying two strands of wire. Two short heavy pieces of insulated wire were welded *631on to tbe two strands of wire. The insulation at the end of the two heavier pieces was scraped.off for about half an inch, and these wires carried a current which was used for testing fuses, motors, and other electrical equipment. When not in use the testing apparatus was hung in a piece of two-inch angle iron by sticking.the ends through holes in the angle iron, which was thus made to serve as a rack for holding the wires. These wires were alive if connected or if both uninsulated ends were attached to a piece of metal or any other substance which would close the circuit. There was no switch on the wall at the point where the lamp cord left the conduit, but there was a cabinet near by containing a series of switches where the current which went to this testing apparatus could be turned off. The work in which the deceased, Kohn, and Pearson were engaged did not require them to make any use of the testing wires, and the wires were in their proper place, the ends being stuck through the holes in the angle iron. While engaged in working upon the piece of conduit in question Kohn suggested to his helper, Pearson, that Pearson touch the angle iron, but Pearson thinking the angle iron was charged declined to follow the suggestion. About five minutes later Kohn left his work to get a drink, and while he was gone Pearson took the wires from the angle iron and laid them against the hacksaw, which in turn rested against the vise which held the conduit upon which Kohn was working, with the expectation that when Kohn returned and resumed his work he would receive a little shock.,, Pearson called the attention of two other workmen to the situation and suggested that they watch the result. When Kohn returned to the ’ bench he took hold of the conduit for the purpose of going on with his work and received an electrical shock which killed him. The proof showed that this was the first time that these wires had ever been usefl for the purpose of perpetrating jokes. There is no proof tending to show that any foreman or superior of either Kohn or Pearson knew that the testing *632wires bad ever .been used prior to tbe time of Kohn’s death for tbe purpose of larking or joking.

Tbe defendant *Nettie Kohn*made application to tbe *Industrial Commission*for compensation, and on August II, 1917, was awarded $3,000. Plaintiff commenced an action to review tbe award of tbe *Commission*in tbe circuit court for Dane county. Upon bearing tbe court affirmed tbe award of tbe Commission, and from tbe judgment of affirmance tbe plaintiff appeals.

Eor tbe appellant there was a brief by *Williams & Stern*of Milwaukee, and oral argument by *B. F. Williams.*

Eor tbe respondent *Industrial Commission*there was a brief by tbe *Attorney General*and *J. F.*Messerschmidt, assistant attorney general, and oral argument by *Mr. Messerschmidt.*

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*633testines. 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 *634death. 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 *635conceded 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.