seem that the extent of the permanency of the injuries cannot now be determined; the present indications being that they are permanent. Whether the court in fixing the number of weeks during which compensation should be paid for a partial disability to both eyes of a permanent character reached a proper conclusion was not raised on the argument nor by the record, and therefore that question has not been considered. My conclusion is that under this record, considering only the questions raised and argued, the judgment should be affirmed. . SUPREME COURT OF NEW JERSEY. MOUNTAIN ICE CO. V. COURT OF COMMON PLEÀS IN AND FOR MORRIS COUNTY ET AL.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT SKYLARKING-RISKS INCIDENT TO EMPLOYMENT. Where two boys employed in an ice plant who were skylarking were ordered by the superintendent to go to work, and ten minutes later one of the boys struck another a blow in the side of the head with an ice pick, fracturing his skull and rendering him unconscious, the accident was a risk reasonably within the contemplation of the master and incident to the employment under the existing circumstances; the master having knowledge of the skylarking. (For other cases, see Master and Servant, Dec. Dig. § 373.). Certiorari to the Court of Common Pleas, Morris County. Proceedings by Jennie McNeill, guardian of Albert McNeill, a minor, and others, for compensation under the Workmen's Compensation Act (Act April 4, 1911 [P. L. p. 134]), opposed by the Mountain Ice Company. Compensation was awarded, and the Mountain Ice Company brings certiorari. Affirmed. Argued February term, 1917, before Swayze, Minturn, and Kalisch, JJ. M. Casewell Heine, of Newark, for prosecutor. PER CURIAM. The single question presented for review on this certiorari relates to a finding by the court below in a workman's compensation case that the accident to the employee arose out of his employment. The legal propriety of this finding is assailed, by counsel før prosecutor, thus: * Decision rendered, July 18, 1917. 1918. 103 Atl. Rep. 912. Received for publication June 11, "That the court improperly found from the above facts that the accident arose 'out of' the employment by respondent." McNeill, a youth of 19 years of age, was employed by the prosecutor as a switcher at its icehouse near Mt. Tabor. The method of work appears to have been as follows: The ice, after being cut, was run into the icehouse along a runway, and at the end of this runway in the house two workmen known as switchers were stationed, who sat or stood opposite to each other at the end of the runway. As the ice came along the runway, the switchers grappled them with hooks and switched them over in the direction of the place where they were to be stored and to which the blocks were finally conducted by other workmen who received them with long poles with hooks on the end, by means of which they guided the cakes to their final position in which they were stored tier upon tier. On the day of the accident Toomey, a youth not quite 16 years of age, was stationed with McNeill at the end of the run; Toomey standing from five to ten feet behind McNeill, who was sitting on a box and engaged in switching the blocks of ice as they came. along on the run over to Toomey who in his turn disposed of them. It appears that an hour or two before the accident McNeill was sitting on a box at the runway and Toomey was teasing and annoying him by pulling out the box from under McNeill with his pole. He did this several times, and McNeill repeatedly told Toomey to stop and not to interfere with the work. Toomey, however, persisted in annoying McNeill, whereupon a scuffle ensued between them, during which time the president and the foreman of the company came along and the foreman said to the boys cut it out and go to work, which order was obeyed. About ten minutes later while McNeill was at work, Toomey struck him a blow on the side of the head with an ice pick, fracturing his skull and rendering him unconscious. Counsel for the prosecutor relies on Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203, as controlling. But the facts of the present case clearly distinguish it from the case cited and relied on. Here it appears that the master had knowledge of what had transpired between the two youths and ordered them back to work. Therefore it cannot be -fairly said that what did happen to McNeill was not a risk, reasonably within the contemplation of the master, and incident to the employment under the then existing circumstances. In Hulley v. Moosbrugger, supra, the master had no previous knowledge of skylarking going on among the young men in the shop, and therefore it was held that it was not a risk within the contemplation of the master as incident to the employment. The judgment will be affirmed, with costs. COURT OF APPEALS OF NEW YORK. MODRA ข. LITTLE. IN RE ETNA INS. CO. IN RE STATE INDUSTRIAL COMMISSION.* 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-LOSS OF USE OF FOOT-PRESUMPTION. Under Workmen's Compensation Law (Consol. Laws, c. 67) § 15, subd. 3, providing for compensation in case of disability, partial in character, but permanent in quality, and that the permanent loss of the use of a foot shall be considered as the equivalent to the loss of such foot, that claimant has sustained a compound fracture of the leg between the ankle and the knee does not create a presumption that he has lost the use of his foot; section 21 of the act relating to presumptions not applying, and the burden of establishing the loss being on claimant. (For other cases, see Master and Servant, Dec. Dig. § 403.) 2. MASTER AND SERVANT - WORKMEN'S COMPENSATION -PERMANENT DISABILITY-LOSS OF USE OF FOOT. In a proceeding for injury, under the Workmen's Compensation Act, for the permanent loss of the use of a foot, an award of compensation as for permanent disability held erroneous under the evidence, where the leg was fractured merely. (For other cases, see Master and Servant, Dec. Dig. § 405[6].) Appeal from Supreme Court, Appellate Division, Third Department. Proceedings by Peter Modra under the Workmen's Compensation Act, opposed by John Little, employer, and the Etna Insurance Company, insurer, to recover for personal injuries. From an order by the Appellate Division affirming by divided court an award by the State Industrial Commission (167 N. Y. Supp. 1114), employer and insurer appeal. Reversed and remitted. William H. Foster, of Syracuse, for Appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents. HOGAN, J. August 29, 1916, the claimant, while engaged in the regular course of his employment as a painter, fell from an upright ladder and sustained a compound fracture of the left leg and bruises. September 20, 1916, an agreement was entered into between the claimant and the employer for the payment of compensation at the rate of $15 weekly for total temporary disability between August 29, the date of the accident, and September 19, * Decision rendered, May. 28, 1918. 119 N. E. Rep. 853. 1916. The agreement was subsequently approved by the commission, and further payments thereunder were made by the employer down to April 25, 1917. In May, 1917, about nine months subsequent to the accident, after a hearing before the Industrial Commission, an award was made to claimant for the permanent loss of the use of his left foot under subdivision 3, §15, of the Workmen's Compensaton Law, at the rate of $19.23 per week for 205 weeks from the date of the accident, payments of $15 per week made to claimant to be credited thereon. From the determination of the commission the employer and insurance carrier appealed to the Appellate Division. The determination was there affirmed by a divided court, and from the order there made an appeal was perfected to this court. Section 15, subd. 3, Workmen's Compensation Law (Consol. Laws, c. 41), provides: * * " "Permanent Partial Disability. In case of disability partial in character but permanent in quality the compensation shall be sixty-six and two-thirds per centum of the average weekly wages and shall be paid to the employee for the period named in the schedule, as follows: * * * Foot. For the loss of a foot, two hundred and five weeks. * * Loss of Use. Permanent loss of the use of a * ** foot * shall be considered as the foot. * equivalent of the loss of such The employer recognized a liability to claimant for a disability partial in character, and expressed willingness to continue to pay compensation therefor until reasonable opportunity was afforded to determine whether the use of claimant's foot would be lost. The claimant made no objection to such course provided he would not lose a right to secure compensation rightfully due him. The commission, however, proceeded with the hearing. [1] In my opinion, the commission failed to give due weight to the language of the statute "permanent in quality." The fact that claimant had sustained a compound fracture of the leg, between the ankle and the knee, does not create a presumption that he had lost the use of his foot. Section 21 of the Compensation Law, relating to presumptions, is not applicable to the present case. The burden of establishing a loss of the use of the foot in this case rested on the claimant, and in that respect his case failed as the record does not disclose any evidence to sustain the conclusion of the commission. On the contrary, the evidence tended to disclose that claimant had not sustained a loss of the use of his foot. The employer's first notice of injury and the attending physician's report in addition to stating the nature and extent of the injury contained the statement that the period from the date of the accident disability is likely to exist "is three months." The record recites that one of the commissioners "read medical reports," but such reports do not appear in the record. [2] Dr. Reiss, representing the insurance carrier, expressed the opinion that nine months was a little too early to determine as to the permanency of the loss of the use of the foot, that there was a little motion to the ankle, good motion to the toes, and in his opinion no injuries to the foot proper as the fracture was between the ankle and the knee. In his opinion there was no contusion or bruises of the bones of the foot. Dr. Lewy, representing the commission, expressed his viewpoint of claimant's condition, as follows: "He has no joint, and entire outward and backward deformity -I think it is a permanent deformity equivalent to the loss of the use of the foot. It is useless for the purpose of a vocation either standing or walking if it is only a short distance." When asked by counsel for the carrier, “There are some occupations he can do?" Dr. Lewey replied, "If he can sit, he doesn't need to use his foot." The record discloses that: "Claimant demonstrates ability to walk by walking to the end of the room and back again." The attempt was described by one of the commissioners in the following language: "In walking the left foot is brought to the ground some distance from the line of the right foot, and claimant says he cannot bring his feet together without danger of losing balance. The distance between the two feet when brought to the ground is nine or ten inches or more than that: pretty nearly a foot." At the time of the hearing before the commission, claimant resided at No. 2123 Caton avenue, Brooklyn. The meeting of the commission was held at No. 230 Fifth avenue, New York. Το reach the office of the commission, as appears by the statement of claimant, accompanied by his brother he boarded a trolley car directly near his residence, rode to Atlantic avenue, and then took the subway across to Manhattan, left the subway at Twenty-eighth street and Fourth avenue, walked from Twenty-eighth street to Fifth avenue and from Twenty-eighth to Twenty-seventh street to the office of the commission, demonstrating some use of his foot. So far as the return discloses, neither one of the physicians present at the hearing made a thorough examination of the claimant to ascertain his physical condition. The claimant, though continuing treatment with a physician, did not call him as a witness to describe the condition of the injured member, his treatment of the same, or to testify to the probable extent of the injury. Claimant stated that he was unable to work at his business, painting, as he would be required to go up and down ladders, and could not do so. One of the commissioners stated: "That it is perfectly apparent, together with the medical testi |