State Young Men's Christian Ass'n v. Indus. Comm'n

• Citation: 235 Wis. 161,292 N.W. 324
• Parties: STATE YOUNG MEN'S CHRISTIAN ASS'N et al. v. INDUSTRIAL COMMISSION et al.
• Decision Date: 04 June 1940
• Court: United States State Supreme Court of Wisconsin

235 Wis. 161

292 N.W. 324

STATE YOUNG MEN'S CHRISTIAN ASS'N et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

June 4, 1940.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action begun April 26, 1939, by the State Young Men's Christian Association and Employers Mutual Liability Insurance Company, Wisconsin corporation, against Louis A. Kregel and the Industrial Commission of Wisconsin, to set aside an interlocutory order of the commission requiring plaintiffs to pay Louis Kregel compensation for expenses incident to an eye injury. From a judgment confirming the order, plaintiffs appeal.

The defendant Kregel, a medical student, was employed as a counselor to assist the first aid medical director at the plaintiff's summer camp for a 10 weeks' period from June 17 to August 26, 1938. His pay was $75 and room and board. Five hours a day he was required to be in the camp infirmary, and he was subject to call when on free time, with the exception of a 24-hour period each week. For that reason he was usually within the camp area. Like other counselors, when not actively occupied he was privileged to use the camp recreational facilities. Among these were tennis courts, furnished with nets. The counselors used their own racquets and tennis balls. On July 21,1938, Kregel and three other counselors were engaged in a game of tennis when a ball struck him in the left eye causing the injury complained of.

On March 28, 1939, the commission found Kregel was injured in the course of his employment; that his injury arose out of his employment; and ordered the payment of his medical expenses. The judgment appealed from confirmed the award.Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison, for appellants.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

FAIRCHILD, Justice.

[1][2] In claims for compensation both employer and employe must give consideration to the employment agreement, including of course reasonable implications, and keep within the provision of the statutes that liability shall exist only where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. Sec. 102.03 (1) (c), Stats. Neither the industrial commission nor the courts have the power to go beyond the bounds fixed by the law upon the subject. In determining whether an injury suffered while playing a game is to be compensated, the deciding factor must be found in facts showing the act to have been performed for the exclusive benefit of the employe so as to be a personal privilege or an act which the employer permits the employe to undertake for some cause apart from the employer's own interests. Smith v. Seamless Rubber Co., 111 Conn. 365, 150 A. 110, 69 A.L.R. 856.

[3] Kregel sustained his injury while he was playing tennis. He was not on duty and was not engaged in doing anything his employer required of him. He was at the time free to do as he pleased. The evidence shows that he was working as camp counselor with duties specifically stipulated. He was to receive $75, and room and board, for ten weeks' services of five hours per day, and 24 hours off each week, with the understanding that except for his 24 hours off he was to respond to emergency calls. In order to meet that requirement he was to be somewhere within the camp limits. The camp director testified that the camp was run on a basis of suggestion and co-operation; that as to the policy of letting the counselor employes use the tennis courts and engage in sports during their spare time, he said: “The principle of the policy is two-fold I would say: First to encourage fellowship with each other; and second to give them some relaxation and benefit of the camp activity, inasmuch as their salary or stipend is very small. *** I wouldn't call it the duty. I couldn't put it on that basis, because I couldn't force anybody to do it.”

The testimony shows the employer's policy as to privileges accorded counselors, and that the employes were not required to participate in games or indulge in physical exertion.

The award was made on the theory that employes' participation added to the camp morale, and furnished intangible stock-in-trade in the nature of character building and leadership in the employes from which the employer derived benefit. But the circumstances and the contract as...