App.) 116 N. E. 324; Clayton v. Hardwick Colliery Co., 85 L. J. K. C. 292.

Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the danger of injury from such play becomes an incident. of the employment of the other workmen, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the Workmen's Compensation Act.

[2] 2. Another matter urged by the defendant is that the plaintiff is not entitled to recover under his theory that he did not know whether the mortar was thrown at him by Deeds, or whether the mortar, by some accident, fell from above. In his brief, the plaintiff says:

"It was one of the very few disputed facts in this case as to whether the mortar which hit the plaintiff in the eye and inflicted the injury upon him was thrown by Mr. Deeds from the . elevated platform or not. The plaintiff did not admit that Deeds threw it although he stated that it was his opinion at the time that it had been thrown by Deeds. He, nevertheless, stated that he did not see any mortar in Deeds' hands or see any mortar coming from Deeds towards him, and the defendant's attorney, in his opening statement, said that he thought Deeds denied having thrown the mortar."

On this phase of the case, the defendant requested the following instruction:

"The court instructs the jury that the burden is upon the plaintiff to show that his injury resulted from an accident which arose out of and in the course of his employment, and, if you are unable to determine from the testimony whether or not the accident in question was one which arose out of and in the course of his employment, then under no circumstances is plaintiff entitled to recover and your verdict shall be for defendant." This instruction was not given.

The defendant's position is not tenable. The plaintiff was engaged in the performance of his labor. If Deeds did not throw the mortar, it fell from the place at which Deeds and the masons were working. It follows then that the plaintiff was injured by accident arising out of and in the course of his employment. This brings the injury to the plaintiff within the provisions of the statute, and renders the defendant liable for compensation in this action.

[3] 3. The defendant insists that the verdict was excessive. Why or wherein it was excessive is not shown. The jury found the period of total incapacity, the period of partial incapacity, and the wages that the plaintiff will probably be able to earn in some suitable employment during the period of his partial in

capacity. If these facts are taken, and the rules for calculati the amount of compensation as given in sections 5905 and 5906 of the General Statutes of 1915 are followed, it will be found that the amount of compensation fixed by the judgment was correct.

Because of the error in the instructions, the judgment is reversed, and a new trial is granted. All the Justices concurring.

On Rehearing.

In an opinion rendered on January 12, 1918, the judgment of the district court was reversed, and a new trial was granted.

[4] The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition on which the judgment was reversed. The judgment was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant's knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom the plaintiff was working at the time of his injury.

The judgment of reversal is adhered to, and a new trial is granted on the following questions: Was the plaintiff injured by William Deeds, accidentally or in sport? If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? If William Deeds was in the habit of indulging in dangerous play with his fellow workmen, did the defendant have notice or knowledge of that habit?

After these facts have been ascertained, judgment will be rendered by the trial court in accordance with the facts so found and in obedience to the law declared in the former opinion. All the Justices concurring.

SUPREME COURT OF KANSAS.

DOBISH
V.

CUDAHY PACKING CO. (No. 21349.)*

MASTER AND SERVANT-TRIAL-WORKMEN'S COMPENSATION ACT-NEGLIGENCE OF EMPLOYEE-EVIDENCE-INSTRUCTION-HARMLESS ERROR.

In an action under the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942), the defense relied upon was that plaintiff's injuries *Decision rendered, Nov. 10, 1917. Rehearing denied April 12, 1918. 171 Pac. Rep. 915. Syllabus by the Court.

were the result of his negligence in failing to procure proper medical attention. Held, that there was no substantial basis in the evidence for this claim, and, further, that the instructions upon this issue were not prejudicial to the defendant.

(For other cases, see Master and Servant, Dec. Dig. §§ 405[1,] 410, 417[8].)

Appeal from District Court, Wynadotte County.

Action under the Workmen's Compensation Act by Frank Dobish against the Cudahy Packing Company. Verdict awarding compensation, motion for new trial overruled, and defendant appeals. Affirmed.

McFaden & Claflin, of Kansas City, for appellant.

Thompson, McCanles & Gorsuch, of Kansas City, for appellee.

PORTER, J. This is an action under the Workmen's Compensation Act. The jury returned a verdict for the plaintiff and special findings to the effect that the plaintiff was injured by an accident arising out of and in the course of his employment, and was thereby totally incapacitated for a period of 416 weeks. They awarded compensation in the sum of $2,484, which is the amount provided for by the statute based on the wages earned by the plaintiff. The court overruled a motion for a new trial, and defendant appeals.

The principal defense urged at the trial was that the plaintiff's injuries resulted from his negligence in not procuring proper medical attention.

The plaintiff is a foreigner, unable to speak the English language, and his testimony was given through an interpreter. The testimony shows that he was injured on the 6th day of April, 1916. He was at work pulling hams from a barrel by means of a hook held in his right hand. While lifting one of the hams, the hook accidentally struck his left hand, penetrating the skin near the base of the thumb. A fellow workman took a clean rag and wrapped the thumb, and the plaintiff continued to work for the few hours that remained that day. He did not consider the injury to be of any consequence, and returned to work the next day, but about 4 o'clock in the afternoon his hand pained him, and he went to the office of Dr. Lewis, who was the physician at the defendant's plant. The doctor administered treatment cleansing the wound, put on an antiseptic dressing, and told him to return the next day. The plaintiff's testimony was that the doctor told him to put his hand in hot water, and that he followed these directions, but did not return the next day because his hand was paining him so that he was unable to leave his bed; that he had his landlord call for Dr. Lewis by phone, but failed to get the doctor; then had the druggist in the neighborhood phone for him. The druggist testified that he called by phone three times for the doctor's office, and talked with the timekeeper at the packing house, but failed to reach Dr. Lewis. The plaintiff then called Dr. Smith, a reputable

physician, who came to the house and treated him for two days. The plaintiff's condition became more serious, and on some one's advice he called another physician, Dr. Brown, also shown to be a reputable physician, who gave him treatment during four days. Some days afterward Dr. Lewis called at the house and had the plaintiff removed to a hospital, where he remained for three weeks, and where Dr. Lewis operated upon the arm and hand. Dr. Lewis testified that he first saw the patient on April 7th, at his office; that at that time he had a slight laceration on the palmar surface of the thumb of the left hand. I administered treatment, thoroughly cleansed the wound with bichloride solution and used iodine, put on an antiseptic dressing. The wound was not very deep, just a slight laceration." He further testified that when he next saw the plaintiff, about two weeks after the injury, he found an infection of the hand, wrist, and forearm, and that the arm was somewhat red and inflamed; that he found no bandages of any sort on the arm. "He was just lying there in bed with his arm exposed from the shoulder down; no dressings on it whatever. Iodine had been put on the arm, and there was some discoloration, due to either iodine or iodomiller. The original wound had entirely healed up." He took the plaintiff to the hospital and prepared him for an operation, made several incisions on his arm, wrist, and hand, and drained it. "I continued to treat him thereafter. He was at the hospital about three weeks." When Dobish first came to him, he washed the thumb thoroughly with bichloride solution, and sterilized it with tincture of iodine, then put a bichloride of mercury pack on it. The doctor testified there was at that time no infection, and that keeping the hand in hot water would have been a good plan for Dobish to have followed.

As usual in cases involving the question of proper medical treatment, there was some conflict in the testimony of physicians called on behalf of one party and those who testified for the other, but the conflict was very slight, and all the physicians agreed that iodine and antiseptics were properly used at first, and that drainage is usually not resorted to in cases of this kind until after the wound becomes infected.

The errors complained of relate to the instructions. In stating to the jury the issues involved, the court gave this instruction: "2. The defendant, for answer to plaintiff's petition, denies each and every allegation therein contained."

It is claimed this was prejudicial error because the defendant had filed an answer setting up as a special defense that the disability complained of "is not the result of any injury he may have received in the course of his employment, but is the result of his negligence in not procuring and having proper medical attention." The defendant's first answer, however, consisted of a general denial, and during the progress of the trial the

Vol. II-Comp. 5.

defendant filed an amended answer setting up the special defense above referred to, which fact was doubtless overlooked by the court in preparing the instructions. The defendant could not have been prejudiced in the slightest, because the court in instruction No. 5 submitted the special defense raised by the amended answer, and the amended answer did contain a general denial of each and every allegation of the petition.

Complaint is made, however, of the language used in instruction No. 5. In this instruction the court, after charging that the right to recover under the compensation act is based upon an accident arising out of and in the course of the workman's employment, further instructed as follows:

"The amount of recovery cannot be augmented by a cause separate and independent of the injury, the consequences of which admit of definite ascertainment, and in this case if the jury find from the evidence that the injury which the plaintiff received was of comparatively little importance and from which he would normally have recovered without any serious consequences, but that by reason of his own acts in failing, neglecting, or refusing to call proper medical aid, if you find that he did so fail, neglect, and refuse, said injury became infected, and you can determine from the evidence with reasonable certainty how much the injury was augmented by reason of said wound becoming infected, then you are instructed that the plaintiff would only be entitled to recover in this action compensation for the injury which was caused by the accident, and would not be entitled to recover for any augmentation of said injury occasioned by said infection; but if you find from the evidence that said infection occurred at the time the plaintiff received the injury or that it occurred subsequent to said time, but that the plaintiff in either event used reasonable and ordinary care to obtain competent and proper medical and surgical aid, then you are instructed that he would be entitled to recover full compensation for the results of said injury, although you may believe from the evidence that the injurious results were augmented and caused in great part by its being infected."

It is complained that the instruction placed the burden of proof upon defendant, that it is ambiguous and its meaning vague and obscure, that even though the jury believed the injury was augmented by reason of plaintiff's own conduct, yet if they could not determine the extent to which his injury was thus affected, they were justified in concluding that his present condition resulted from the original injury.

As applied to the facts disclosed by the evidence, we think it cannot be said the instruction prejudiced the defendant. Some of the language used is open to the criticism that it is somewhat ambiguous, but the important issue was kept before the jury, and they were given to understand that plaintiff was not