Jones v. Campbell, Wyant & Cannon Foundry Co.

Wiest, C. J.

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 operat *359 ing 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. Baker-Vawter Co., 206 Mich. 466 . In such ease 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.