I am unable to distinguish the instant case upon principle from the case of Tarpper v. Weston-Mott Co., 200 Mich. 275 (L. R. A. 1918E, 507). Indeed, counsel for plaintiffs say in their brief:
"We are, however, confronted by the decision of this court in the Tarpper Case above referred to, and as we take it, according to that case, that injuries received as a result of sportive acts, horseplay or jokes do not arise out of the employment, nevertheless we wish to state, with all due deference to the court, that we think the reasoning of theTarpper Case is incorrect."
In that case, as in this, the unfortunate accident resulted solely from horseplay of co-employees who, leaving their employment, engaged for the time-being in what to them was supposed to be a harmless "larking." They were then performing no duty to their employer and I do not think their employer should be held liable for the injury they inflicted which resulted so disastrously.
But it is thought that case is not applicable because the "straw boss," Irons, had knowledge that the employees had engaged in horseplay and had participated in it. This straw boss had no authority to hire or discharge employees. He was not the alter ego of the master and notice to him was not notice to the master. But if we should pass all this, I am still unable to see a distinction between an injury caused by a co-employee with a sportive disposition and one caused by a co-employee with a malicious disposition unless the distinction be favorable to the former. This court has considered two cases involving an injury caused by a co-employee possessed of a malicious disposition. Marshall v. Baker-Vawter Co., 206 Mich. 466;Little v. Atlas Drop Forge Co., 221 Mich. 604. In theMarshall Case, Mr. Justice BIRD, after citing a large number of cases, stated this conclusion: *Page 701
"An examination of these authorities does not disclose any material disagreement over the test which should be applied. Some of them are close cases — near the line, as is the present case. In all, or nearly all of them, the same test is applied, namely, whether the attack grew out of the employment — out of the work, or was one of personal vengeance,"
and then quoted with approval the language of the court inJacquemin v. Manufacturing Co., 92 Conn. 382 (103 A. 115, L.R.A. 1918E, 496).
In the Little Case the employee was angered because of directions given him by Little with reference to some material. Mr. Justice McDONALD, who wrote for the court, there quoted from Justice BIRD'S opinion in the Marshall Case and from the Connecticut case, and in conclusion said:
"Apparently the sole reason for the assault was his resentment because of the directions which Little gave and which it was his duty to give. It grew out of the work which plaintiff was required to do in the course of his employment. No other reasonable inference can be drawn from the undisputed facts. On these facts the board was correct in its determination that the injuries to plaintiff arose out of and in the course of his employment."
I think it is obvious that if the employer is not liable under the workmen's compensation act for an injury inflicted by a quarrelsome employee, known by him to be such, unless such injury grew out of the work, that he is not liable under the workmen's compensation act for an injury inflicted by a sportive employee known by him to be such, unless such injury also grew out of the work.
If we follow either the Tarpper Case or the Marshall andLittle Cases, I do not see how we can affirm this award.
I think it should be reversed.
WIEST, J., concurred with FELLOWS, J.
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