liability. Without any claim that the services were not rendered or that the charges were not proper, plaintiff prosecutes a cross-appeal based upon the summary manner in which the court disposed of the matter, and contends that it was unfair to him for the court to make the order without the formal introduction of evidence, and also that it was a question which should have been submitted to the jury. The main purpose of calling a jury in a compensation case is to determine disputed questions of fact raised by the pleadings, and the issues are usually confined to the inquiry whether plaintiff's injuries were occasioned by an accident arising out of and in the course of his employment, and particularly to the question of the extent of his disability. No issue was raised by the pleadings involving the right of defendant to have credit for the expenses incurred for medical care furnished the plaintiff. But if the plaintiff received the benefit of the services furnished, justice and fair dealing, as well as the provisions of the statute, require him to credit the judgment with the amount of the expense, or to pay the expense himself. The spirit and purpose of the compensation act will not permit him to take any technical advantage of the manner in which the order was made. In a similar situation in the case of Bundy v. Products Co., 103 Kan. 40, 43, 172 Pac. 1020, the plaintiff was required to remit from the judgment the amount of a like claim under the provisions of section 5906, Gen. Stat. 1915, which declares that

"In fixing the amount of the payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during his period of incapacity."

To the same effect, see Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251.

The judgment will be modified by reducing it to the amount which the plaintiff is entitled to recover for 390 weeks at $3.25 a week In all other respects, the judgment and orders of the trial court are affirmed. All the Justices concurring.

SUPREME COURT OF KANSAS.

WHITE
ย.

KANSAS CITY STOCKYARDS CO. (No. 21832.)*

1. MASTER AND SERVANT-INJURY TO EMPLOYEE-PRANKS OF FELLOW SERVANT.

An employer is liable under the Workmen's Compensation Act for injuries sustained by an employee from an electric shock caused by a mischievous prank of his fellow workmen, when it is shown that the perpetration of such pranks had become a custom on the employer's premises, and consequently had become an incident to the employment. (For other cases, see Master and Servant, Dec. Dig. § 373.)

2. MASTER AND SERVANT-KNOWLEDGE OF FOREMANNOTICE TO MASTER-FOREMAN."

The person designated by the master to direct the work of employees is a "foreman," however limited in other respects his authority may be;

* Decision rendered, Jan. 11, 1919. 177 Pac. Rep. 522. Syllabus by the Court.

and the knowledge of such foreman that dangerous practical jokes were being perpetrated by some of his employees at the expense of other employees was notice to the master.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

(For other definitions, see Words and Phrases, first and Second Series, Foreman.)

Appeal from District Court, Wyandotte County.

Action by W. P. White against the Kansas City Stockyards Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. L. Wood, of Kansas City, for appellant.

J. K. Cubbison and W. C. Holt, both of Kansas City, Mo., for appellee.

DAWSON, J. [1] The plaintiff was given judgment under the workmen's Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216) against the defendant, who was his employer. Plaintiff's injuries were occasioned through a mischievous prank perpetrated upon him by some of his fellow workmen. They fastened an electrically charged wire to an iron door on the defendant's premises. Plaintiff had to pass through this door when his day's work was done and when he had washed and dressed to go home. On touching the gate, plaintiff was severely shocked and more or less permanently injured.

It is needless to discuss the question whether plaintiff was injured in the course of his employment. Under not dissimilar circumstances, it has been so held in this state. Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9, L. R. A. 1917B, 372; Monson v. Battelle, 162 Kan. 208, 170 Pac. 801, Syl. par. 3; Id., 103 Kan. 470, 173 Pac. 927.

It has also been held that, while ordinarily a master is not liable under the compensation act for injuries to a workman which have been caused through the mischievous pranks and sportive jokes of his coemployees, yet the rule is otherwise where the master has knowingly permitted such mischievous pranks to continue. In such cases the danger of injury becomes an incident of the employment. Stuart v. Kansas City, 102 Kan. 307, 310, 171 Pac. 913.

[2] The serious contention in this case is that the master did not know that such pranks were being perpetrated on its premises. It would not be unjust to say that the master should have known and was chargeable with notice, for this same mischievous and dangerous prank had been practiced frequently on other workmen off and on for several weeks or months before plaintiff was injured. Here, however, it was shown that plaintiff's foreman, the man who directed his work, was one of the perpetrators of the mischief which injured the plaintiff. This foreman knew this particular prank had become a custom on the employer's premises. Defendant contends that this person was not a foreman, but the great weight of the evidence is to the contrary. It is true that this foreman had no general authority, but he was the person whom plaintiff had to obey while in defendant's employment. To that extent he was a foreman, and his knowledge of the electrical mantrap on the door was notice to his principal.

No error appears in the record, and the judgment is affirmed. Johnston, C. J., and Mason, West, and Marshall, JJ., concurring. Burch and Porter, JJ., concur on the ground the master was chargeable with notice on account of the notoriety and long continued existence of the practice.

COURT OF APPEALS OF MARYLAND.

F. B. BEASMAN & CO. ET AL.

ข.

BUTLER. (No. 40.)*

1. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-INJURY ARISING OUT OF EMPLOYMENT-QUESTION FOR JURY.

Where a servant employed in work of clearing ground for a United States military cantonment was injured while on his way from sleeping quarters, provided by contractor, to begin work, being run over by a passing motor truck, used by contractor to convey men to work, whether or not accident arose out of and in course of his employment held for jury in trial on appeal from award, in view of Workmen's Compensation Law, § 56.

(For other cases, see Master and Servant, Dec. Dig. § (417[7].)

2. MASTER AND SERVANT - WORKMEN'S ACT-EXTRAHAZARDOUS EMPLOYMENT.

COMPENSATION

Whether a day-laborer engaged in cutting, piling, and burning brush in cleaning a site for a military cantonment was engaged in an "extrahazardous employment" within the meaning of the Workmen's Compensation Law held for the jury, in trial on appeal from award; especially in view of section 56.

(For other cases, see Master and Servant, Dec. Dig. § 417[7]·)

3. MASTER AND SERVANT - WORKMEN'S

ACT-WILLFUL MISCONDUCT.

COMPENSATION

Whether a servant was guilty of "willful misconduct" within the meaning of the Workmen's Compensation Law, in attempting to climb onto the side of a motor truck traveling five or six miles an hour held for the jury in trial on appeal from award; especially in view of section 56.

(For other cases, see Master and Servant, Dec. Dig. § 417[7]) COMPENSATION

4. MASTER AND SERVANT - WORKMEN'S -EVIDENCE-REBUTTAL.

In a proceeding to obtain compensation under the Workmen's Compensation Law, where it had been testified in behalf of the employer that servant had willfully attempted to climb the side of a moving motor truck, testimony in behalf of servant that another man had been run over near the place, and about the same time that the servant was injured, was admissable to show that witness of employer was testifying as to the other occurrence.

(For other cases, see Master and Servant, Dec. Dig. § 404.) Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge.

"To be officially reported."

Proceedings under the Workmen's Compensation Act by Ernest Butler to obtain compensation for injuries, opposed by F. B. Beasman & Co., the employer, and the United States Fidelity & Guaranty Company, insurer. There was an award, which was confirmed by the superior court of Baltimore city, and the employer and insurer appeal. Affirmed.

* Decision rendered, Dec. 10, 1918. 105 Atl. Rep. 409.

Argued before Boyd, C. J., and Briscoe, Burke, Thomas, Pattison, Urner, and Stockbridge, JJ.

Guion Miller, of Easton (Bartlett, Poe & Clagett, of Baltimore, on the brief), for appellants.

Charles W. Main, of Baltimore, for appellee.

URNER, J. The appellee, Ernest Butler, was employed as a daylaborer by F. B. Beasman & Co., contractors, in the work of clearing ground for the United States military cantonment known as Camp Meade. While Butler was on his way from the sleeping quarters, provided by the contractors, to begin work at the place to which he was assigned, his left foot was run over and partly crushed by the wheel of a passing motor truck. The state Industrial Accident Commission, upon application of the injured man for compensation, and after due hearing, decided that the injury arose out of and in the course of Butler's employment, and directed weekly payments of specified amounts to be made to him by his émployers and the United States Fidelity & Guaranty Company as their insurer, for the period and according to the rates prescribed by statute. On appeal by the employers and insurer to the superior court of Baltimore city, the award to the claimant was confirmed as the result of the verdict of a jury in his favor. A further appeal, as permitted by law, has brought the case to this court.

[1] The appellants complain, in part, of the refusal by the superior court to grant a prayer by which they proposed to have the jury instructed that there was no evidence in the case legally sufficient to prove that the appellee sustained personal injury through an accident "arising out of and in the course of his employment." Such an instruction could not properly have been granted under the circumstances of this case, in view of the statutory rule relating to the burden of proof in such cases, as construed and applied by this court in recent decisions. It is provided by the Workmen's Compensation Law that in all court proceedings which it authorizes the decision of the state Industrial Accident Commission "shall be prima facie correct and the burden of proof shall be upon the party attacking the same." Code art. 101, § 56. In Jewel Tea Co. v. Weber, 132 Md. 178, 103 Atl 476, and in Coastwise Shipbuilding Co. v. Tolson, 132 Md. 203, 103 Atl. 478, where the question now under consideration was involved, the trial court was asked to rule as a matter of law that the evidence was not legally sufficient to prove that the claimant's injury arose out of and in the course of his employment, this being one of the statutory conditions for his recovery of compensation, but it was held by the court, in its affimance of the judgments appealed from, that as the burden was on the appellant to show that the finding of the commission was incorrect, "it was for the jury to determine the question of fact presented by the appeal, and, among them, the question whether the injury sustained by the deceased arose out of and in the course of his employment, * * * and the court was not authorized to say that the appellant had met the burden imposed on it, or to assume a fact to be found by the jury."

In the Weber Case the claim was made on account of the death of a man, employed as a driver and salesman to travel through the country with a team of mules and a wagon, taking orders for and delivering goods, and who was kicked and fatally injured by one of the mules as they were being placed in a stable at the end of a day's work. The claim in the Tolson Case was by a shipyard laborer whose hand became infected as a result of being stung by an insect or pricked by some sharp object as he was in the act of lifting an old piece of piling from the sand in which it was partly imbeded. In each of those cases the question whether the accident arose out of and in the course of the employment had been decided in favor of the claimant by the state Industrial Accident Commission, and

consequently the burden of proof, as provided by the statute, rested upon the party appealing from that determination. It was clear that the issues of fact there presentea could not properly have been withdrawn from the jury at the instance of appellants charged with such a burden. The same ruling is required by the present record.

In this case there is evidence that the claimant was injured at the site of the camp where he was employed, and while going to work from the quarters provided by his employer, along a road made for camp purposes, and that the injury was inflicted by a motor truck used by his employer in conveying men to their places of work on the grounds in process of being cleared. Whether the accident occurring under such circumstances arose out of and in the course of the employment was a question of fact which the appellants were not entitled to have withdrawn from the jury upon the theory that they had met the burden of proving the contrary.

The appellants also sought to have the jury instructed, in effect, that if they should find certain facts, which we have stated, as to the time and place of the accident, then the appellee's injury did not arise out of and in the course of his employment, and he was not entitled to recover. This proposal to direct and control the inference to be drawn by the jury from the facts to which the prayer referred was properly refused.

[2] Another instruction proposed by the appellant, and rejected by the court below, was based upon the theory that there was no legally sufficient evidence that the appellee was engaged in an extrahazardous employment, within the provisions of the statute, at the time he was injured. The work undertaken by the contractors who employed the appellee was to clear the timber off the land on which Camp Meade was to be located. The appellee testified that he had been engaged in cutting, piling, and burning brush and clearing the land, and, as already stated, that the motor truck which injured him was customarily used by his employers on the camp road over which he was going to his work. This evidence as to the nature and conditions of the appellee's service was before the state Industrial Accident Commission when they decided as to the validity of the appellee's claim under the Workmen's Compensation Act. Its decision necessarily involved a determination that his employment was extrahazardous within the meaning of the statute, which, after specifying a large number of occupations as being subject to that characterization, declares that it is intended to apply to all extrahazardous employments in addition to those which it enumerates. While the act does not in terms mention the work of clearing timber from land, it designates the closely related work of lumbering as being extrahazardous. The question whether the appellee's employment was of that character, under all the circumstances, was an issue which he was entitled to have submitted to the jury, especially as the burden was upon the appellant to show that the finding of the commission upon that point was erroneous.

[3] There was evidence, adduced by the appellants, tending to prove that the accident on which the appellee bases his claim was the result of an unsuccessful effort which he is said to have made to climb on the 'side of the motor truck as it passed him on the roadway. Upon this testimony, which is in conflict with that of the appellee and others, the appellants asked the court below to instruct the jury that, if they found the appellee to have been injured while he was in the act of attempting to board a rapidly moving automobile truck, and if they found such act to have been manifestly dangerous, and not required by his duties or the interests of his employers, then such act constituted willful misconduct which disentitled him to a verdict in his favor.

In the recent case of Baltimore Car Foundry Co. v. Ruzicka, 132 Md. 491, 104 Atl. 167, we had occasion to consider the statutory provision, here also relied upon in support of the prayer last mentioned, that no employee, or his dependents, should be entitled to an award under the Workmen's Compensation Act on account of any injury caused by his