Opinion
Docket No. 29, Calendar No. 39,909.
Submitted April 6, 1938.
Decided June 6, 1938.
Appeal from Department of Labor and Industry. Submitted April 6, 1938. (Docket No. 29, Calendar No. 39,909.) Decided June 6, 1938.
Charles Jones presented his claim against Campbell, Wyant Cannon Foundry Company, employer, and Michigan Mutual Liability Company, insurer, for injuries sustained in defendant's employ. Award to plaintiff. Defendants appeal. Reversed.
F.E. Wetmore, for plaintiff.
L.J. Carey and Geo. J. Cooper, for defendants.
In February, 1937, plaintiff was employed in defendant's foundry, breaking up and putting slag in buckets, to be removed by a motor truck, operated by others. While he was running an electric truck, as he claims, by permission of its regular operator, a fellow employee grabbed hold of him and, to support himself, he seized the reverse operating lever, the truck moved backward, bumped him against a wall and he sustained a fracture of the left pelvis. He was in a hospital for several weeks and made a good recovery.
The department of labor and industry awarded him compensation during the period of disability and for hospital expenses.
Defendant prosecutes review, contending that plaintiff was injured by the horseplay of a fellow employee and, therefore, not by an accident arising out of and in the course of his employment.
The evidence negatived any motive on the part of the fellow employee, outside of playfulness. The department entertained and expressed the opinion that, inasmuch as plaintiff was not a participant in the play, the decisions of this court in so-called horseplay instances did not control.
In Tarpper v. Weston-Mott Co., 200 Mich. 275 (L.R.A. 1918E, 507), the victim of a fellow servant's horseplay was not a participant, nor was the victim in Steffes v. Ford Motor Co., 239 Mich. 501, and in both cases it was held there could be no award.
Had the fellow employee assaulted plaintiff there could be no award. Marshall v. Raker-Vawter Co., 206 Mich. 466. In such case there is also no participation by the victim.
The department was in error and the award is vacated, with costs to defendant.
BUTZEL, BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.