In сlaims for compensation both employer and employee must give consideration to the employment agrеement, including of course reasonable implications, and
*163
keep within the provision of the statutes that liability shall exist only where, at the time of the injury, the employee 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 dеtermining whether an injury suffered while playing a game is to be compensated, the deciding factor must be found in facts showing the аct to have been performed for the exclusive benefit of the employee so as to be a personal privilege or an act which the employer permits the employee tO' undertake for some cause apart from the employer’s own interests.
Smith v. Seamless Rubber Co.
Kregel sustained his injury while he was playing tennis. He was not on duty and was not engaged in doing anything his emрloyer required of him. He was at the time free to do as he pleased. The evidence shows that he was working as cаmp counselor with duties specifically stipulated. He was to receive $75 and room and board for ten weeks’ services of five hours per day, and twenty-four hours off each week, with the understanding that except for his twenty-four hours off he was tо 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 employees use the tennis courts and engage in sports during thei'r spare time, he said:
“The рrinciple of the policy is twofold 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 employees were not required to participate in games or indulge in physiсal exertion.
*164 The award was made on the theory that employees’ participation added to the camp morale, and furnished intangible stock-in-trade in the nature of character building and leadership in the employees from whiсh the employer derived benefit. But the circumstances and the contract as disclosed by the evidence do not sustаin the findings. The exercise of his privilege to join in a game of tennis with other employees who. were also indulging in the pleasure did not result in service to the employer. He and his companions were free to use their time to suit themselves. It was whilе playing in this manner that Kregel was struck in 'the eye with a tennis ball. At the time he was exercising a personal privilege apаrt from any interest of the employer, the nature of which cannot be considered as being for the benefit of the employer or for the mutual benefit of both. Plis play was without direction or compulsion of any kind which required him to take part, аnd no duty was imposed on him. Nor would he be discharged for failure to- participate.
The argument is made that becausе he was subject to call, his activities in the meantime were so related to his employment as to keep him in servicе. This is similar to the claim made in the case of
Brienen v. Wisconsin Public Service Co.
“True, the stаtute must be liberally construed in favor of including all service that can in any sense be said to reasonably come within it. But to inсlude the acts of an employee when off duty and when attending to business pertaining strictly to' his own private affairs . . . would be tо- enlarge the meaning of the statutory words beyond their reasonable import, and to constitute every act of an employee subject to a call for duty an act within the scope of his employment though performed in a matter purely personal to himself.”
.The findings must be supported by substantial evidence.
Jasperson v. Industrial Comm.
“Industry must take care of its disabled, but optional gymnasium exercises cannot be said to' be a part of employmеnt so that a common mishap in indulgement is an injury arising out of and in the course of employment.”
The
Brienen Case, supra,
treats with facts considered tó bе similar to those at bar. In neither instance was the claimant on duty, and in each the employee was doing what he wanted to do. The statute, the
Brienen Case,
and
Wisconsin Mut. L. Co. v. Industrial Comm.
“It seems plain enough that Hannon was on duty when injured, and if he was on duty [Hannon’s duty was to load equipment and stay with the wagon until it wаs loaded on the train] he was performing service incidental to' his employment.”
Hannon was on duty and had not turned aside to satisfy his own curosity or partake in any other transaction. Negligence while performing a duty does not change the rеlation to the service he is rendering his employer if the act performed is in the discharge of that duty.
McManus’ Case,
By the Court, — Judgment reversed, and cause remanded with directions to enter judgment setting aside the award of the Industrial Commission.