"An injury may be by accident, although it would not have been sustained by a perfectly healthy individual." Same treatise, p. 69.

"The courts very generally hold that, if an existing disease is aggravated by accident or injury, compensation must be paid for the resulting injury." Note, L. R. A. 1917D, 105. See, also, pages 129, 130.

[5] 5. The principal contention of the defendant is that, accepting the plaintiff's own version of the affair, the injury did not arise out of or in the course of his employment. He testified that the water covered the railroad track running through the yard of the car works where he was employed; that when he checked in in the morning there was not much water; that he did not have to wade through it at noon when he quit work, or at 1 o'clock when he returned, but that when he checked out at six o'clock in the evening he had to go to the timekeeper's office; that the water was then within five feet of the office and he had to wade over his shoes. The evidence is not very clear on the point, but is open to the construction that water through which the plaintiff waded was upon the premises where he was employed. It is clear that the injury was received in the course of employment. His going to the timekeeper's office to check out was a necessary incident to the performance of the duties for which he was paid. Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9, L. R. A. 1917B, 372; Corpus Juris article, § 74, p. 83. The serious question is whether it arose out of it.

Irrespective of any question of negligence, the standing of the flood water on the ground which was a part of the defendant's factory became for the time being one of the conditions under which the business was carried on. It was not a condition peculiar to the kind of business done, but it was one which gave rise to a special risk incurred by workmen there engaged. We think the injury (assuming the facts to be as claimed by the plaintiff) is to be regarded as one arising out of the employment. Recoveries under the Compensation Act can only he had for injuries received in certain specified kinds of business, which are designated as "especially dangerous." Gen. Stat. 1915, § 5900; Laws 1917, c. 226, § 1. But it does not follow that the only injuries for which compensation is provided are those which result from the use of devices or methods which are in

themselves exceptionally hazardous. The employer is protected as to this feature of the matter by the rule that he is not liable for any injury which happens elsewhere than "on, in, or about" his factory, that is to say, in the factory, or in such close proximity to it that the place "is within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business" of operating it. Bevard v. Coal Co., 101 Kan. 207, 215, 165 Pac. 657. But the hazards on account of which the employer may be held liable are not alone those which

are the necessary accompaniment of operating any business of like character (Corpus Juris treatise, § 64, p. 74); they include all that result from the carrying on of the business in the way in which it is actually carried on. The driver of a truck who was injured while handling meat in the course of its delivery to a customer at some distance from the packing house was held not to be within the protection of the statute. Hicks v. Swift, 101 Kan. 760, 168 Pac. 905. But the reason was that he was not hurt "in or about" the factory. His injury, however, arose out of his employment, and if it had happened in the same way, while he was loading the truck at the packing house, or at a place immediately adjoining it, he would undoubtedly have been entitled to

recover.

The case is not similar to those in which a workman, while engaged in his employment is injured by some unexpected extraneous agency, such, for instance, as a stroke of lightning, or the sportive act of a fellow employé, when there is no causal connection between the injury and the condition under which he was required to work. The water had been slowly rising all day, prior to the plaintiff's injury, and, although its presence was the result of forces beyond the defendant's control, it would have been quite possible for him to have made some arrangements to avoid the necessity for the plaintiff's wading through it. That the making of such an arrangement might have been beyond the requirements of mere ordinary prudence does not affect the matter. An injury may be said to arise out of the employment when there is a causal connection between conditions under which the work is required to be performed and the resulting injury. Corpus Juris article, §64, p. 73. In principle the situation is not unlike that presented in Stuart v. Kansas City, 170 Pac.-, decided at this session, where it is held that an employé may recover compensation for an injury caused by the playful or wanton act of a fellow workman, whose earlier conduct of the same sort had made it possible to anticipate such a happening.

[6] 6. Complaint is made of the overruling of an objection to a hypothetical question on the ground that it seemed that the plaintiff came in contact with the water on four or five different occasions, instead of but once, as he testified, and because the fact that the bones were necrosed was omitted. We do not find the objectionable matter in the question, and any omission could have been corrected upon cross-examination. In any event, especially as no jury was present, we think no prejudice is shown.

[7] 7. We are asked to withhold the determination of the case to give the defendant an opportunity to be heard in the trial court on a petition for a new trial on the ground of newly discovered evidence. That is a matter in which it is competent for the district court to give him protection, if the situation is found to warrant it.

The judgment is affirmed.

JOHNSON, C. J., and BURCH, WEST, MARSHALL, and DAWSON, JJ., concur. Porter, J., dissents.

SUPREME COURT OF KANSAS.

TROWBRIDGE

V.

WILSON & CO. (No. 21572.)*

WORKMEN'S COMPENSATION-RIGHT TO COMPENSATION— INABILITY TO LABOR.

Under the Workmen's Compensation Act, compensation can be recovered where inability to labor is caused by pain resulting from an injury received in an accident arising out of and in the course of the employment.

Appeal from District Court, Wyandotte County.

Action for compensation under the Workmen's Compensation Act by Emma M. Trowbridge against Wilson & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

O. C. Mosman, of Kansas City, Mo., and McFadden & Chaflin, of Kansas City, Kan., for appellant.

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

MARSHALL, J. Under the Workmen's Compensation Act, the plaintiff recovered judgment for $636 for four weeks' total incapacity for labor, and 208 weeks' partial incapacity. The defendant appeals.

The defendant complains:

"Of the action of the trial court in admitting and excluding evidence, in refusing to give the instruction requested by appellant, the giving of instruction No. 1 of the instructions given by the court, of the action of the trial court in overruling defendant's motion for a new trial and overruling defendant's motion to set aside the special findings of the jury, and in entering judgment in favor of the plaintiff and against the defendant."

In opening its argument, the defendant says:

"The error of the court in admitting and excluding evidence, in refusing to give the instruction requested by defendant, and in giving instruction No. 1. of the instructions given by the court, all involve the action of the trial court in allowing the pain and suffering claimed by the plaintiff to enter into this case and

*Decision rendered, Feb. 9, 1918. 170 Pac. Rep. 816. Syllabus by the Court.

be considered by the jury as affecting plaintiff's recovery, and will therefore be considered jointly."

In her petition, the plaintiff alleged that, because of the injuries sustained by her, she was unable to work for more than a month, and will for all time suffer such pain that she will never again be able to work and earn wages as before. There was evidence to show that the injury was painful, and that the pain prevented the plaintiff from working.

In the first instruction, in stating the case to the jury, the court said:

“Plaintiff in her petition alleges, in substance, that * * * the plaintiff was laid off from work for more than a month, and will for all time suffer such pain that she will never again be able to work and earn wages as before."

The defendant asked the court to give the following instruction:

"You are instructed that the plaintiff is not entitled to recover herein for any pain or suffering resulting from her injury, if any."

The instruction requested was not given. However, there was nothing in the instruction to indicate that the plaintiff was in any way entitled to damages for the pain that she had suffered.

There is but one proposition argued in the defendant's brief. That proposition is that the plaintiff was erroneously permitted to recover damages for the pain she had suffered. The defendant says:

"The plaintiff is not entitled to recover compensation for pain or for inconvenience, nor is she entitled to recover damages for pain and mental anguish."

It may be conceded that the defendant here states a correct principle of law. The compensation provided for by the statute is for loss of wages on account of incapacity for work caused by accident. A hand, an arm, a leg, or any other part of the body, may be injured, and the pain caused by any movement of the injured part may be so severe as to compel the injured person to cease to make any physical exertion whatever. Pain alone may render a person unable to work, or partially unable to work. If pain brought about by an injury causes inability to labor, that pain is within the provisions of the Workmen's Compensation Act, just the same as though some part of the body had been otherwise impaired to such an extent as to render the person unable to perform labor. Compensation for loss of wages or for loss of ability to earn wages, although that loss may be caused by pain, is not the same as damages for the pain. The former comes within the Workmen's Compensation Act; the latter does not.

There was no error in admitting evidence concerning pain, and there was no reversible error in refusing to give the instruction requested by the defendant.

The judgment is affirmed. All the Justices concurring.

SUPREME COURT OF KANSAS.

VOGLER
ບ.

BOWERSOCK. (No. 21287.)*

1. WORKMEN'S COMPENSATION LEASE-TRIAL BY JURY.

ACT-VALIDITY OF RE

Section 5930, Gen. Stat. 1915 (section 82 of the Workmen's Compensation Act), construed and held, that in actions to enforce compensation where the validity of a release or other discharge of liability is involved, either party may, when the case is called for trial, demand a trial of that issue by a jury.

2. WORKMEN'S

COMPENSATION

LEASE-FRAUD-EVIDENCE.

ACT-VALIDITY OF RE

Evidence examined, and held sufficient to sustain a judgment setting aside a release executed by the plaintiff purporting to discharge the defendant from liability for compensation.

Appeal from District Court, Douglas County.

Action for compensation under the Workmen's Compensation Act by A. J. Vogler against J. D. Bowersock. Judgment for plaintiff and defendant appeals. Affirmed.

O. L. Rider, of Vinita, Okla., and S. D. Bishop, of Lawrence, for appellant.

John J. Riling and Edward T. Riling, both of Lawrence, for appellee.

PORTER, J. [1] The defendant appeals from a judgment in plaintiff's favor under the Workmen's Compensation Act.

Mr. Bowersock, the defendant, is the owner of a paper mill in which the plaintiff while employed at a corrugating machine was injured, his left hand being drawn into the rollers and crushed, resulting in the loss of the hand, with the exception of the thumb. The accident occurred in May, 1914. The answer pleaded as a defense a settlement and release on the 9th of September, 1914, in consideration of the payment to plaintiff of $500. The instrument of release was acknowledged before a notary public and filed in the office of the clerk of the district court. In his reply the plaintiff alleged that while he was in the defendant's employ an arrangement was entered into by which defendant deducted the sum of five cents for each $5 or major portion thereof earned by plaintiff, which sums, together with similar deduction from the wages of all the employés, were paid for the purpose of obtaining workmen's collective insurance; and that the release was obtained by the agent of the insurance company carrying the collective insurance, who did not disclose to plaintiff the fact that he was act*Decision rendered, Feb. 9, 1918. 170 Pac. Rep. 805. Syllabus by the Court.