*1 Sparks-Withington 1958] Co. Redeern (although which neither transcripts side filed briefs file), proceeded to decide the case without notice plain- to either side without briefs. When tiff failed to file a brief within allowed, the time de- open fendants had at least courses of action them—to file their own brief, or to move dismiss appeal. protected Either course would have Failing their interests. action, must be held appeal to within discretion board to dis- pose of such on its matters own motion. This Court delay disposition not does favor of workmen’s compensation part proceedings any party. on the appellee. award affirmed. Costs to JJ., Black, Smith, Voelker, and Kavanagh, con- J. curred with Edwards, CRILLY v. BALLOU. Compensation Purpose — of Act.
1. Workmen’s compensation upon status, act The workmen’s rests the idea of contract; implied is, upon conception that not injured compensation workman is entitled to for an industry oper- sustained in the service of an to whose wages ations contributes his work for the sake of as the capital profits (CL for owner contributes his the sake of seq.). et 411.1 § Pault—Negligence. 2. Same —Proximate Cause — fault, compensation neglect Workmen’s is not to be barred injured inattention of the workman. [8] [8] [5] [6, [1, [2] 4] 58 Am Workmen’s 58 Am Workmen’s 58 Workmen’s 58 Am Workmen’s 58 Am Workmen’s 58 Am Workmen’s Am Jur, Jur, Jur, Jur, Jur, Jur, References Compensation Compensation Compensation Compensation Compensation Compensation Points in Headnotes §§ § § § 200. 281 et 209. § 4. 268. 305. seq. Reports. Capacity. Damages—Earning 3. Samis — get act under the workmen’s A workman law, “damages” the term is used elsewhere in the full earning capacity. to interference with but is limited *2 Employment. Superior Respondeat of —Course 4. Same — re- compensation does not involve the doctrine of Workmen’s spondeat superior recovery compensation does not and cases scope employment concept of but common-law of turn on the requirement statutory of course Cause. 5. Same —Proximate gave rise an the hazard which be determined It must compensation claimed one injury for was which workmen’s exposed employment; Ms employee was because of to which the constructive, ac- knowledge, aetual or his employer’s being sportive practices, not quiescence his condonation of injury. compensability essential . Cause —Assault. 6. Same —Proximate employee whose compensation will not be denied an Workmen’s employment his of and the course of arose out assault, sportive participated in merely he have because compensa- requirements of workmen’s provided the other tion aet are satisfied. Employment Jokes. —Practical Same —Course 7. concept employ- of course of compensation act’s The workmen’s assigned at comprehensive than the work ment is more employee’s minis- employment, as it embraces place of working way life in a needs, human trations his own jokes playing practical including practice of environment, employees. on his fellow Compensation. Permit —Double Work Same —Minor Without 8. working age years but nearly 17 employee, who Plaintiff permit as siding a work without roofing and contractor for shingle by a thrown statute, injured required by when held, compensa- double entitled to younger employee, another by the workmen’s eye provided tion for 1952, seq.; §411.7). (CL 1948, 409.1 et CLS aet JJ., Kelly, dissenting. J., Carr and Dethmers, C. and Ap- Compensation the Workmen’s Appeal (Docket 1958. January Board. Submitted peal 15, 1958. Decided July No. 47,294.) No. Calendar Crilly Ballou. Crilly, minor, and Leo Douglas Stephen Francis presented his claim Crilly, guardian, against Ballou, and Clarence Samuel subcontractor unin- B. sured Sam employer, Wisdom, doing business as & subcontractor, Wisdom Booting Siding, Company, Travelers Insurance insurer, Wisdom’s and John contractor, for Pinarelli, compensation be- cause of eye received coem- injury to when ployee were in pranks engaged during working From period. compensation, plaintiffs denial ap- peal. entry Beversed remanded of award. Plotkin, William 8. for plaintiffs.
Lacey, Doelle, Jones & Doelle (Buell counsel), for defendants Wisdom Travelers Insurance Company. *3 J. Once more we re- consider the great
Smith, medial statute, the workmen’s act. The case before involves a us boy years. some a Pie and friend had been con- teen-age a employed by tractor work. From engaged roofing siding time to time ivould throw and nails shingles and forth back at each other. These assaults acts, point of law, arose from youthful exuberance, rather than from or vindictiveness, animosity. the last Nevertheless, shingle thrown, out the put claimant’s He eye. claims In compensation. op- it the position is said that not injury did arise out and in the course of the employment. general We are here in the area of assault The particular type cases. of assault now before us in the Its labels are sportive is assault. as varied as It is the acts themselves. called sometimes fooling, or practical horseplay, or joking, larking. knows or or or occupation calling, time, no bounds loca very terminology reveals. Thus the tion, as its lark Michigan Reports. ing English youths, on when undertaken of the towering ships great so sail, with their masts “skylarking." nearly sky scraping itself, became partic employed, however, the term Whatever purpose of the social is, of assault for the ular kind governed sought this act, to remedied evils applicable essentially principles to those similar blinded the malicious The workman assault. may job by himself to some a console fellow worker merely sportive, degree blinding if the recognizes family’s of income malicious, but his loss burden distinction, the economic nor does public necessarily by charity, private, in assumed con sheer numbers extreme cases. far as So authority against weight re seems cerned, covery type however, lan If, in this of case. quantitative guage we turn from chemist, squarely qualitative weight analysis con equal in a case tra. The of this recent division Court Corpora (Stewart Chrysler principle v. related in aggressor relying rule tion, Mich 69) LaFond, Mich warrants our Horvath of re-examination of the entirety. problem in its recovery type arguments against in this place it be said well In the first case are that the known. shingles, hired to throw was not (This or discredited is an ancient now nails, but to work. argument originally to refute made employment itself in ac- relation existence tions seeking of his for the torts hold the master Limpus Compare London General Omni- servant. Eng Rep [158 993], [1862], 1 H & C bus Co. dissenting per Wightman, J., said, wherein was *4 [pp coachman was defendants’ that “The 536, 537], plaintiff’s employed or hinder to obstruct not Stillwagon Brothers, Inc., Callan omnibus,” with [170 App 677], a Div 141 NYS denying recovery, court, held' where case, Crilly Ballou. employed fighter; [p 143] not that “He was it.”) helping driving truck and load to work was to throw not hired was Since, then, things (nails, apples, ashes, stones, hot rolls, cases) reported if he a few from the cite instances injured doing, argued in- that he was in so it is jured employment.” scope itOr, of his “outside the under such said, is sometimes received fault, workman’s own arose circumstances, any possibly, of At the fault a fellow workman. or, employer’s. it cases, it In other rate, was not the pointed injured participated is in the out that the claimant being started it. This
action, sometimes even necessarily urged, the recovery, it denied case, must profit he would his own otherwise wrong. permitted times, At indeed, the claimant is point to recover. In cases, out, some such the courts employer happen going could foresee what was pointed nothing. and did in other Or, cases, out stop goings-on nothing he knew of the and did might reasonably them, hence, it that there be said implication authority was an so to act. negligence, scope is all fault, What this talk of employment, foreseeability, implied author- ity? paradise concepts, once in a We lived of these legalistic completely of Eden, veritable Garden so out of touch with the realities of industrial life those who came succor, before us for halt blind, the accidents, victims of industrial were almost invariably away empty turned handed. was the people unrecompensed reaction of our to these in- juries expression that found com- workmen’s pensation today philosophy longer acts. A that is product pay way, new demanded that the its own that the human material consumed in its manufacture purchased be ore with the same coin as the coal and iron
going production. compen- into its “Workmen’s legislation sation rests the idea status, *5 353 Reports. upon con implied contract; is, that that injured to com
ception is entitled workman that pensation in the service for sustained industry operations he contributes whose of an capital his his work as the owner contributes —the wages for and the other one for the sake ponder profits.”* bar Let the bench sake of the area in in this of decision as our course well, past quoted are words that the reviewed, decades is spoken year Sutherland, the those of Mr. Justice century quarter 1923,and not earlier, was 1958but supreme the United States. the court was the court consuming theory clear: of the acts was The The public, charity, public private, must foot the or not injuries. Compensation, bill moreover, for work-incurred neglect, or fault, barred not to be was failings is, mere inattention, for human longer the work In need short, the workman. recompense. The to receive man be free from fault family he more of the careless as well as worker, privation careful, stopped and sorrow when knew injured would workman True, income. “damages” get in the law. full term is used as recovery carefully circum The amount of It was limited to interference with earn scribed. ing disfigured capacity. might grotesquely be so workman yet insensitive, shock even the
as to compensation, aided this harm there was no unless mangled might, indeed, He be so statute. organs, even can have his sexual but eunuchs lost compensation laws he is and, hence, work under nothing. Baker, entitled Smith v. Okla might 132). jury, course, in either of P2d A persuaded others, instances, to the these as well up contrary, given the workman has his common- but Black, [*] Cudahy J., S Ct Packing Mack Company Reo L ed Motors, Inc., 366, Nebraska v. 30 ALR 345 Mich 532), Parramore, quoted in 272. 263 US dissent 418, Chilly v. Ballou. law action, and can no longer seek from a damages jury. However, there was a giving on both sides. In return for the workman’s limited re monetary covery got certainty adequate compensatory *6 payments litigation. without recourse to
Such, at any rate, the a plan. was was vain For hope. its relative failure the courts must assume a sobering responsibility. What people, our in their have understanding, attempted we of freely give, the judiciary, our tenacious adherence to inappli law, concepts cable of the common many have cases m withheld. unfamiliar, Courts or with unsympathetic, the objectives broad humanitarian of the act have permitted retention, in its of such interpretation, tort and agency fault, authority as concepts (express or implied), knowledge, foreseeability, and of scope employment, the very in fact, that caused concepts, the breakdown of the common-law remedy first place and necessitated of the act. passage They are out of completely harmony with its ob jectives. we Thus continue flog patient the same whips that him laid low in the first place and “confusion and conflict”* reign in our minds our opinions as wonder we fails to re why cover his health.
itSo is that get cases, we to the assault a of type case involving, just clearly event of negli- a of gence, degree culpability, fault, of on the part n ofthe workman, either the claimant or himself, his fellow workers. The earliest of the assault sportive (the fooling, or horseplay, cases skylarking) denied Their recovery. reveals their reasoning mis- Armitage v. Lancashire & York- conceptions. Thus shire R. [1902] 2 KB LJKB 778, 86 LT 883), boys. involved Two were A larking. third hit in was a of iron eye by piece thrown by one of * Rutledge, App DC 52 J., in F2d Hartford 11), infra. Accident & Indemnity Co. Cardillo, Reports. larking pair. Recovery (p 181): denied wrongful entirely scope-
“This was act outside the employment.” it will Here, noted, the court upon concept (scope employment) falling back entirely origin application, foreign, both in to- principles underlying passage compensa legislation. Scope employment its it uses, tion has application respon true, in the of the doctrine of superior. deat respondeat superior But does involve recovery compensation- scope- concept turns not on common-law cases of employment statutory requirement but concepts The 2 have a course distinguished of' fact, different content. In students subject “perhaps that, the important guide” have stated most interpretation of the ex
for the pression “arising em out of and in the course sharply ployment” is to “realize that should be phrase ‘scope from the of the area of differentiated employment’ technical *7 designed circumscribe liability persons.”* to third vicarious Early the- in result to were similar American cases supra. Recovery English con with was denied case, employ through usually uniformity, siderable liability. agency Thus ment tort or tests Seymour (Jacquemin Turner & oft-cited case Manfg. [103 LRA1918E,. A Co., 115, 92 382 Conn spoke opinion case) what the assault 496], reasonably anticipated. employer Michi have could (Tarpper gan 200 Mich Weston-Mott in 1918 recovery 507]) the victim denied [LRA1918E, relying (sportive) cer assault, an air-hose of tain then-recent ex hereinafter we will which
cases (Lee’s Case, 240Mass Massachusetts amine in detail. recovery 870]) in a denied [134 20 ALR 268, NE 473 sportive “scope heavily upon leaning case, assault also, p 139. [*] Riesenfeld Maxwell, Modern Social Legislation, p 234. See, Crilly v. Ballou. employment.” Such it acts, was re- had “no said, employment.” lation whatsoever to passage years, With the of the however, and as study act received the careful of the bench and bar, early nonliability rule of became riddled with ex ceptions harmony so numerous and so out of with rationale of the earlier decisions that it became an n openquestion beyond purely how much, verbal persisted. residuum, the earlier doctrines It re opin mained for Mr. Justice in Cardozo, his famous Champlain in ion Leonbruno v. Mills, Silk 229 NY (128 522) play (involving NE 711, 13 ALR throwing apples), completely ful to break with the concepts controlling (cid:127)common-law theretofore held point statutory liability and to out un basis 472) (p der the act. He stated that the claimant “was injured, merely factory, while he was in a but associa factory, because was in a touch inseparable factory tions and conditions life. The risks of such conditions were associations and employment.” penetrating of the risks Likewise analysis Judge, Butledge, later then Justice, Mr. appeals Columbia, (cid:127)on the court of for the District of Indemnity Cardillo, Accident & Co. v. Hartford denied, App 11), 52 DC F2d certiorari (an case), 1415) US aided S 84 Led Ct assault held, clarifying problem. He then part (pp 15), that: particular peculiar “Not the character
n associationsand work creates but that the conditions, is the with them basic surrounds thing. necessary, that the show, “Nor is as these cases particular act or which is the immediate cause event *8 any part injury of the of work done for be itself employer by others. the claimant or Otherwise many injuries given now com- no pensated, for award could he by stray un- bullets, as those caused such Reports. 312 353 falling explained objects the em- from outside falls, many premises ployer’s work, horse- risks, and street many play, ‘The and other causes. most assaults of in the crowded contacts of incurred risks factory through of workmen are the acts fellow the not tendency by of acts to serve measured the line Not the act master’s business.’ special duty, work, creates of or forwards the brings purposes employee within but that the work risks, its compensation, peril, it, for of makes ” ‘part work.’ similarly. distinguished Thus courts ruled Other years many contrary holdings, after court, right the California injured involving girl in a a bus case by by eye young hard thrown roll one bus another, compensability (Pacific boy Em- at held ployers Insurance Accident Com- Co. v. Industrial 313]). [158 mission, The ALR 26 286 P2d 159 Cal2d opinion closing paragraph ra- its states tionale : may, propensities “Considering, we ordinary of mankind and
tendencies habits beings admitted that wherever human life, it must be congregate, play, at at there either work or is some frolicking horseplay. Accordingly, nonparticipating through a of sustained horseplay fellow ‘out of’ and ‘is workers arises proximately employment’ within caused meaning 3600 the labor code. The cases section Pillsbury, Co. v. 172 Cal Beach Coronado Pillsbury, 1164) Fishering LRA1916F, P ; (158 215); Liability Federal Mutual Ins. Cal 690 P (201 920); Com., Acc. Industrial Cal P Co. v. Com., Western Power Co. v. Industrial Acc. Great Emp. (201 931); P Ins. Co. 187 Cal Pacific Safety, Acc. P Ind. & 209 Cal Division 619), are overruled.” *9 Chilly 313 v. Ballou. (Secor Garage, The Secor Case Penn v. Service [117 12]) 19 NJ 315 A2d is also the illustrative of modern trend of decision. This another case involving injury arising an foolhardy, from a intend- ed-to-be-playf'ul Jersey affirming recovery act. In New the part, (pp court held, 319-321, as follows 324) : concept liability “The common-law based on fault is nowhere in the act and mentioned has proper place contrary administration; in its on liberally applied the act is to be as a protect employees statute intended to in the event of injuries neg notwithstanding work-related their own # ** ligent foolhardy Similarly or even conduct. purpose, the act nowhere either in terms or embodies concept proximate the common-law causation; contrary enough employment it if the is is contributory Corp., cause. See Sanders v. Jarka (61 641), sustaining 1 NJ 36 A2d where court flatly an award based on a criminal assault stated proxi employment that the not be the ‘need sole injury’ statutory mate cause re quirement contributing employment is met if the is ‘a leading necessary cause to the accident’ or ‘a factor’ “ “ * to it. statutory phrase "by arising “The accident out employment’ and in the course has no strict counterpart common-law and courts have defined and applied liberality. varying it with In oft-cited Bryant (1913), (86 84 case of v. Fissell A NJL 77 458), sustaining Trenehard, in an Justice an award to injured compensable that a workman, stated accident reasonably ‘from risk to the results incidental em- ployment’ and accident arises course employment ‘if it occurs while the is doing employed may reasonably man do what a so during employed, within a time which he at a place reasonably during that time.’ where (1952), Riviera, Bill See Miller v. Miller’s Inc. 21 NJ Super 889); Henry 116 A2d V. Schultz Michigan Reports. Super 492, Inc. NJ Co., (1953), Sons & Vaughans Wilkinson, Gaddis In & Belyus A2d 873). A(182 873), (178 A 181), 115 NJL 43 NJL out of the Helier that an accident arises noted Justice ‘reasonably incident’ when risk employment course thereto, when employment employment arises period occurs within the *10 be reasonably employee at a where the place may the em fulfilling the duties reasonably while is it..’ to See 1 ‘or incidental something ployment Larson, doing 193. Not Law, Compensation p Workmen’s definitions, of these sweep judicial withstanding the court in 88 NJL (1915), v. Moosbrugger Hulley (95 1007, LRA1916C, denied a com 161, 169 1203), A to a victim of award pensation horseplay nonparticipating that his not did arise ground out of a risk incident to the reasonably See, also, Wright Corp. Budrevie v. Aeronautical (50 135 46 136 (1946), affirmed, A2d NJL 147), NJL A2d (55 198 v. 10); Savage Otis Elevator Co. (1948), The 595). 136 NJL A2d of au weight great thority is now trend indeed the contrary; has been toward allowing compensation partici even their pating employees to minor where deviations be said be and attributable to normal human tend encies which men do not wholly simply shed because * ** at are work. even when automaton, and, “An an is not he will to extent deviate highly efficient, he is some work. from the of his performance uninterrupted if it light Such be considered minor deviation, the particular time, place circumstance, and the realistically viewed both the employer the employment as a normal incidence of employee relation and in day not this viewed legal- ought ly thereof. Fulfillment the course breaching and ever high purposes socially important of our suggests act compensation broadening workmen’s in terms nothing statutory this approach and any position.” dictates narrower Crilly v. Ballou. reasoning in found result and will be Cases similar in hereto* we will not this tbe footnote but extend opinion by quotations therefrom. particular present
The
cases in
area
interesting array
to the
of stare decisis.
student
compensation
It
naciously cling
in
that we te
unknown,
law,
precedents
jurisdic
other
long
origin.
of their
tions,
overruled
the States
interpretation
Note
of the word “accident”
case of
Hensey
White,
[1900]
QB
767),
LJQB
LT
dissent,
commented
Wieda
Co.,
182, 192.
v. American Box
343Mich
Board
Hensey
manifestly
Case,
had life
erroneous,
only years England
in
years prior
had
there been overruled
adoption
for some 10
by
to its embrace and
presented
A similar situation is
area
us.†
sportive
of assault,
malicious,
now under examina
leading
Tarpper
tion. Our
case in this field is
(LRA1918E, 507),
Weston-Mott
1007,
This case is one of those
by
disapproved
Jersey
the modern New
in
court
the
England
Workmen’s
Safreed,
v.
[1957]
v.
Mass 102
Finance
dustrial Acc.
[*]
†
Bryan,
Martin
Note also our
Newell v.
Cum
v.
[224]
and until Bricker
Supp,
(85
Baking
8 CB 115
Bronx
Compensation,
Ark 397
Com.,
Moreau, 94
NE2d
pp
Hospital,
extended reliance
Co.,
[38]
17,
69)
Cal2d 659
(137
(273
18.
239 Minn 307
;
NH 439
State
§
¶. Green,
[276]
SW2d
Eng Rep
11.15(e), p
App
Compensation
(242
545).
(55
upon
316 353 supra, representing which a view as to Case, as Secor contrary; authority weight great the of is now to Pillsbury, (2) Beach v. Coronado Co. Cal (158 1164). LBA1916F, in Overruled 91, P Pacific Employer’s Accident Co. v. Industrial Insurance supra, upon, part, the follow- Commission, in 287, ing rationale: urges of stare that the doctrine “The commission perpetuation of errors for a does not call decisis reap- past ‘frank declares that a decisions. changes particularly
praisal
in
view of
law,’
concepts regarding
in
workmen’s
holding
compels
1916,
since
conclusion
Pillsbury, supra,
of Coronado Beach Co. v.
case
longer
be followed.”
should
Falkenberg,
App
(3)
Filippis
Matter
De
(155
761).
is commented
Div 153
This case
NYS
Taxi Transit
in Matter
Ramos v.
744),
App
follows:
Div
NYS2d
101,
interesting
an
evolution
“There
been
has
injuries
sportive play
arising
from
view taken
during employ
arguments between fellow workers
injuries
in
thus
ment.
earlier rule was
A clas
curred did not ‘arise out of’
Falkenberg
Filippis
example
sic
Matter De
(170 App
supra),
153,
where
Div
decided
employee
an
scissors thrust
caused
a
partition by
prac
through
a
fellow
a
joke
compensable,
being
tical
held
reliance
placed
long
English
on a
line of
cases.
might
compared
“This
with Matter
Industrial
McCarthy,
(Siguin) v.
341Wis 143, LRA1916D, NW This case Badger was overruled in Furniture Co. Industrial 734). Commission,195 134, 138 Wis NW “When the Havolie Case was decided,” the court with said many candor, admirable “the court had not had cases under the it.” act before parenthetically, willWe observe, awaken- ing together objectives act, awareness social growing
with the it realization that cannot by judge-invented function as intended if hobbled country is not restrictions, to this alone. confined Wright, observations Lord in Noble v. South- ern R. Co., [1940] AC 600-602 LJKB 509, 176), point: 164 LT BWCC are here every question in “The fundamental and initial claim under the act arose accident must be whether the out of the course of question only That a of fact decided which can county judge by applying court his common knowledge sense and his industrial conditions to to though regard him, the evidence before due * * * any principles laid down the courts. say gone time “I it true to has think common- the courts have taken fairer more justify af- which sense view the circumstances * * * point. finding This House firmative on this * ** ready past think is so as was I construing forget simply statute, that it is import limitations refinements which justification.” afford no words of the statute *13 Michigan Reports. 353
318 which the Tarp- the upon muck for precedents So the later far as the of reasoning relied. So Case per assault sportive is the concerned, cases the examination in case thorough most received its (36 Mich 693 225 Reynolds Spring Glenn v. of the award of fact that 1464). In view of the ALR prop it may affirmed in this case was the a relaxation of earlier construed as erly be in relied, Glenn opinion doctrine. Since the Tarpper knowledge of employer’s the factor the part, upon in Derhammer J., “fooling” (Nelson the of Sharpe, in further News, 660), Detroit 229 Mich v. court New York highest view the of the suggestion recovery courts) other that before well as (as case, the had, practice a assault sportive could be that it have been of duration long-standing must such we business,* jus of the had become a custom thereto. some attention tified devoting the of the the custom establishment (or “condo- of, and toleration knowledge find courts the employer. of, sportive practice nation”) The its significance? what legal to end? What But the employ upon employment by course shed light if, indeed, act is questioned slight of a knowledge er’s employer knowledge But the in fact, existent. in per directly upon possible negligence does bear of a if continue, and, knowledge acts to mitting employee’s fact, upon bears commonly-known conditions, under working of risk assumption thereof of his fellow or lack upon negligence These, scope workers, employment.† act intended are defenses this course, very in Matter Mr. Elkus observed abolish. As Justice to NY Son, Joseph Stern & Verschleiser v. have employer 126), require NE * Manfg. Co., Ognibene 749); NY NE2d Rochester cf., Hayes Freight (Ky), 290 SW2d Lines v. Burns 836. Restatement, Agency, † 1 229. Crilly Ballou. knowledge propensities one’s to assault others (as compensation) condition to “is retrogression the old master and servant law and clearly against the intent workmen’s compensation law which does not look for bite, fault.” first under this is free. Not until the theory, second is blood drawn, for not until at then, is the earliest, es- propensity tablished. These observations to be as appli- seem cable assault as the *14 sportive malicious assault. But a criticism equally pertains serious to the kind or of employer degree required. Must it knowledge be knowledge actual ? Or will we into the realm get of fictions and require “constructive” merely knowl And edge? Knowledge of what? knowledge of the particular occurrence? Or of human knowledge or playfulness combativeness? a matter of As fact we are dangerously close a lack complete of real ism in the requirement that the or sportive malicious assault must become a have custom injuries before received therefrom are compensable. The books contain many cases, “air-hose” the situation compressed which a fellow worker is “goosed” a shot * Under some the victim circumstances air. suffers ruptured intestines dies in agony. is difficult to picture such re becoming attacks so petitive, so well known, and so commonly accepted in any plant as rise to the of a dignity “custom.” If it rise, yet cannot so we demand a proof “custom,” we have held, a simply through verbal formula, there shall no compensation. course, Of if acts are custom of the business there can be no doubt that has the injury requisite work connec tion. But this is far from saying that there must be we can proof of custom before have compensation. NW [*] E.g., Ky (LRA1918E, Federal LRA1916D, 507) Rubber SW ; 687). 968) ; v. Hazelwood Standard Manfg. Tarpper Co. v. Weston-Mott Havolic, Sanitary Manfg. Co., 162 Wis 341 200 Mich Michigan Reports. compensation, distinguished respect from With day-hy-day damages, are concerned with the we tort employer’s aspects, operation in all its operation knowledge knowledge does or lack or an incident of the is not control whether employer indisposed, If the remote business. operation, engrossed en- affairs, in other even the joying respite Caribbean, will
a well-earned operations compensation suspension abe there developed their or natural concomi- absence, his inquiry line This not a critical under tants? at the look, rather, law. hazard We whether or not from which the arose and ask exposure resulted from his the claimant’s thereto employer’s knowledge, actual acquiescence, constructive, condonation, his are compensability not essential to the of an under our statute. place might decision in the
We case us before grounds remaining so narrow as to leave doubt jurisdiction agency whether in con- tort and rejected by cepts controlling act still employer There here that had truth. is evidence *15 knowledge play taking place of the between was boys job. 2 while on reasons herein- these the For reject. forth in We detail, above set this rationale we place ground might also decision that when on the the the claimant was has called in struck what been ag- sportive nonparticipating cases victim cleaning gression companion. (“Wozniak of was up throwing shingles pieces of around the cutter one window; or out of of downstairs pieces returning eye right plaintiff as he was struck floor.”) difficulty with to the second aggression approach First, a mat- twofold: judicial into it inter- administration leads ter minable
litigation
proper
identification of
analysis
(Note
aggressor.
careful
of this
Chilly
321
v. Ballou.
Chrysler
by
problem Mr.
in Stewart v.
Justice
Black
601.)
Corporation,
depend it is in such considerations is) (as utterly conceivable that the act would be respect guide leaving with silent thereto, us without supreme or standard. The court of California (State Compensation Insurance Fund Industrial 311]), [242 Commission, Accident P2d Cal2d recently quoted approval part a substantial Rutledge Judge the decision of Accident (112 Hartford Indemnity App Cardillo, & Co. v. 52DC F2d 11), enjoin in which the court had refused the en forcement of an award of in an assault following (pp 667-669): case, with the comment (Citations “The modern trend is in accord. omitted.) Many subject writers have taken position (Assaults Horseplay same under Compensation Workmen’s Laws, Samuel B. Horo- vitz, 41 111 311; L Rev Current Trends Workmen’s Compensation, p 532).. Samuel B. Horovitz [1947], writings At In the ably presents the above Mr. Horovitz *16 problem. page seq. 343 et of 41 111L he Rev Reports. any legal says: ‘Why difference it make should injured compensation law whether the under the Certainly, compensa- party aggressor? was the employer expressly gives de- the the tion statute * * * “aggressor.” fense “ thought- impulsive, ‘Many result assaults origin, al- trivial in acts, often less or unintentional though The or even fatal. serious result the merely “explosive point of ante- the culmination is many pressures” A tells worker in instances. cedent quit gang and that the the he to his foreman wishes prejudiced against word him. leads One foreman is fly. rule To create an to and fists another, artificial aggressor contact is an made that whose fist first though (and the first fist recover, can never even did permanently in- fist harm, no jured whereas second legislative forget worker), the fellow tois arising injuries employment command he out that compensated, misconduct or short similar of wilful provisions. origin quarrel had its And where the of wil- or work-environment and was short work any express defense in misconduct, ful the or short judicial- justify their act, how can the court own ” ly-created defenses?’ making compensation difficulty second aggression Two on lack is more serious. turn even horseplay plant, fighting there men are tween them. Each is be- way, injured the same degree. applies compensation. Each same nonaggressor. granted, say, This let the A, us necessarily, arose his means, If is denied out of his course (save statutory prohibition) specific to B we in the because of necessarily say received employment. It was of and out of his course injuries, plant, same incident, same same yet compensable injury, al- we has a man, find, one you though B, has not the other. The court said you you it, cannot recover started because *17 Crilly 323 v. Ballou. your aggressor, it was fault. Thus fault once more compensation prevents for industrial and we nearly have turned hundred of hack hands the clock a years. permitting concept Before fault power overriding it would such ourselves be well to remind that it is not of nature, a law like the law gravity. theory of for Dean The that “fault” forms the basis recovery according
tort came into the to law, through Pound,1 a combination of ethical con- metaphysical theory siderations and the free of utility theory liability will. The under modern fault tort open is,
conditions to the indeed, most question.2 may serious recovery, However to be as tort today upon making which court insists compensation fault committing the criterion workmen’s differing degree only an error ago half-century the learned court of a which compensation the first declared law unconstitutional part, imposed liability because, without fault.3 beyond clearly competence, judges, It is our that we continue insist will award workmen’s compensation to workmen who are at fault with re- injuries spect complain, specifi- to the of which cally (in context in writing) which we are now approve aggressor, that we will not whether award to sportive, provided malicious4 or the other possible appliance that has prevented Press Ann Cas intentional his to sustain are those aets of infra, foresee 1160 SW2d South 2 Harper 1An To be “Under employees, neglected (1922). citing Buffalo Introduction 156). 1912B, distinguished 61). prevent, and wilful misconduct under Federal Underwriters the reasonable care of the R. James, is liable law, duty, through the most or 201 NY to the gross The and whose from the term “malicious” as here whieh, Law an accident whieh no human damages make for Philosophy thoughtful if reprehensible Torts, chapter Exchange workshop preventable safety, any employee and careful the act. NE 431, Law, nature as to constitute health and morals of Samuel, at equipped 12. himself.” all, 34 LRA NS Yalo See employer, who can with discussion, University being employed Tex 444 happens only Ives every who can Reports. it-
requirements act are of the act satisfied. aggression a defense no mention contains self compensation. judge-invented, payment It is to having inapplicable concepts, origin tort its type judge-abolished. of fault This and should be any more than the not defeat should faults of They are blood inattention or carelessness. brothers. merely a thread in a are, sense,
The assault cases larger great tapestry. all of area involves *18 many, (and as those getting of acts there are series going conces and like toilet, to the drink, a desires) which, needs, to human instincts and sions hired not themselves, in and of the workman was perform. permissible one If it to consider to such acts is itself, its surround
alone, isolated ing went before divorced from what circumstances, (defined, the Mis short, what after and comes without mule, “an animal farmer defined his souri ancestry hope pride posterity”), then, literal or ly, perform it. hired In so was not to stepped employment, doing from his aside employer, longer a frolic went off on worked for (to cases), language of the detour of his own use unemployed, for on no one’s became, moment, and obviously payroll, a not and not entitled workman, injured. compensation if Hence, series (see validity questionable Larson, cases, now seq.; Compensation of., 21.00 et Law, Workmen’s Inc., 268, dissent, Motors, Mack v. Reo 345 Mich J.), holding injuries per received in the Black, noneompensable. of such activities are course reasoning of these cases The fatal defect purpose appreciation of the their lack of plain great words, its act, humanitarian content of its commodity.
objectives. is not a Labor people, men, women, and, as this case so Labor is tragically They great, have virtues, children.
shows, Chilly v. Ballou. they image, they for are made in God’s but have (cid:127)grievous they perfect. They for faults, are far from quarrel, they fight, they are abusive, sometimes even profane. They they are hired to work, and work might they do, as our industrial Yet attests. work always carefully, not ways they for heedless, are not al- single-minded duty,
with a devotion for thoughtless. are There was a when em- time ployers say injured employee, could to an I hired you you to be careful, not work, careless. I hired fight, play. you, not to I hired the best good, I worst. hired the not the evil. I hired the time, sophistry virtue, not the vice. Such was, a
accepted. boy true that in Mr. (Leonbruno, supra) Justice Cardozo’s case was not apples, any hired to boys throw more than the be- shingles. fore us were hired to throw what was But boy a simple hired, or a robot? The answer points employer to our solution: hired being, human imper- with all his reactions Going job sanctify fections. to the does not him. give At home or work, at a man a curse and he will anger, give teen-age boy apple core and he will “brings throw it. The workman work,” to his *19 dissenting Laundry we Bagley said, in Salmon v. Company, 344Mich “all of his char- human acteristics, his frailties as well as his virtues. We actually legally, precise either cannot, make the surgeon. excisions of the We cannot remove from put employer, only him, and to work for his his his strength. strength goes His hand in with hand temper. impossible employ only It is tous the grace and charm of the female worker. hireWe lively curiosity. people by well her We collect these put the even hundreds, and thousands, them we to work, sometimes amid noise and some- vibration, They get times They and smoke steam. tired. get hungry. They thirsty. get They go have to to Reports.
n tempers grow day and wears on The toilet. the Trips horseplay. sought to the is short. Relief grow and in number urn cooler coffee water employment. of is the course This duration. employment’ form of words. is not sterile of ‘Course age. These descriptive in the industrial of life It is the automaton of the course from human deviations relationship. employer-employee suspend the not do employment, the departures They but from are not They very con- the inevitable are of it. substance working relationship and conditions of the comitants produce product. must reflect Its costs which the the fatigue, the blood and sometimes irritations, explana- It find that went into it. is here that we curiosity horseplay cases, and cases, for the tion cases.” the assault purposes answer. For the Herein lies our employ- concept of course act assigned comprehensive work than
ment is more employee’s ministra- at the lathe. It includes eat; conces- he own must tions to his human needs: rest, he must must sions his own human frailties: sometimes, even break, now then have jokes plays job, practical fellows. on the scope employment not Course clearly way reveal, is a former, The as the cases so working results in a If the life environment. ten- stresses, the work or from the itself, working environments, sions, associations, Why? compensable. human material, as well as ingredients product it- those are the Because price it, on its self. the market carries tag well its human as as its scarred, stained and says It does not be- material costs. So the statute. ignore plain come us its commands. define the outer limits need undertake to
"We
compensability.
rule on
case before
We
us.
requirement that there be a causal connection
*20
Crilly
Ballou.
thereof, the work
or the incidents
the work,
between
injury,
ing
to exclude the
serves
conditions, and
disputes,
purely personal,
connected,
such
nonwork
attempted
Harry Elrod
after one
which arose
whom
to
a fellow
“date” the wife of
workman
night preceding
the alterca
had met in a tavern
Bleachery,
tion.
SE
Elrod
204 SC
v. Union
73).
2d
of the stat
the terms
Excluded, also, under
gross
reprehensible nature
ute are
acts
intentional
misconduct*
constitute
and wilful
(CL
§17.152]).
§412.2 [Stat
Ann
Rev
presents
entirely
This
different
situation
of an
presented by
playful
character than that
shove
tragic may
punch,
or the
how
matter
roundhouse
unexpected
be the
exclu
latter’s
this
results. And
turpitude,
degree
sion of
of a
it will
acts
of moral
judicial
by
legislature
observed,
itself,
retrogression
principles
than
Further
of tort.
pre
attempt
go.
definition we do not
cise
out,
future line of
marked
demarcation will be
in the traditional
deci
case-to-case
manner,
sions.
present
So much for the
future.
and the
As for
past,
specifically
Tarpper
we
overrule the
Case
(Tarpper
Company,
v. Weston-Mott
character, and hold that received in assaults, sportive either not, are malicious, reason of beyond such fact compensability. alone, the realm of arising employment If out of and received in compensable. the course thereof are employment It is plaintiff conceded Douglas Crilly permit required was without the work employment (PA for the of minors. 1947, No seq. (Stat [CL § 409.1et Ann 1950 Rev 17.701 knife and 2d [*] 61), Federal Underwriters wherein assailant-elaimant attacked coemployee. Exchange armed himself with iron bar and Samuel, 138 Tex 444 SW *21 Michigan Reports. provisions com- seq.)].) 7 of the of section
et The [Stat (CLS § pensation Ann 1950Rev 411.7 act by 77]) are 1952,No there- PA 17.147, amended applicable. fore employ analysis repeat of such need onr
We Ranch, 343 Mich & Jill found in Field Jack ment 280. appeal the workmen’s The order of entry for and the cause remanded board reversed Plaintiff an order in accordance herewith. costs. have concurred JJ., and
Black, Voelker, Kavanagh, Smith, J. question {dissenting). in at The issue Carr, J. Douglas case is whether the for which plaintiff, Crilly, com- seeks herein referred to as pensation 'em- out of and in course arose plaintiff ployment. July and Arthur 9, 1953, On employed by Ballou, who defendant were Wozniak was siding roofing job in a subcontractor on a and nearly Douglas Detroit. At the time was East years younger. age, and Arthur was somewhat acquainted Apparently they been for some time. had question the occasion in were inside On cutting building 'they working, on which by working employer shingles their who was use they began engaged throw- on the outside. While so pieces shingles, possibly ing asbestos other They previously at en- missiles, one another. had gaged conduct had been their warned employer not to do so. boys
Apparently one other than the 2 position building or in what time, at see the was Arthur According testimony occurring. to the hearing the referee, before the con- continued for some less time, referred to but duct Crilly v. Ballou. Finally Douglas than half hour. was struck eye consequence suffered loss industrial boys Following* therein. con- vision event both cealed for some time the manner in which the in- jury had been sustained. hearing testimony referee concluded from plaintiff
before him that the not Accordingly suffered did arise out of and the course of his compensa- denying an order was made appeal tion. The board sustained decision of specifically finding *22 plaintiff the referee, that his companion engaged horseplay in which resulted injury, in the and that such conduct not had been employer condoned instructed them that their who had warned and
against it. board concluded “Douglas Crilly personal did not receive in- jury arising employ- of out in the course of his ment.” granted plaintiff appealed
On leave has to this claiming notwithstanding Court, in effect that of the the findings appeal factual board entitled is compensation. Whether such claim is well depends interpretation given pro founded visions of the on the
compensation act.* The mere fact premises that one suffers an on the where employed right he is not sufficientto establish his compensation. Presumably to thought it was with such legislature
in specifically mind that pro the payment compensation vided for the of in instances where “arising the was one out of and in the employment.” § (Stat course of his CL 412.1 1948, 17.151). § Ann 1950 Rev The nest section of the expressly compensation act denies to an “injured by of reason his intentional and wilful mis (CL Rey § [Stat conduct” 412.2 Ann 1950 17.152]). § protec The statute was enacted for the et [*] scq., PA 1912 as amended (1st [Stat Ex Sess), Ann No Eev as amended §'17.141 et seq., (CL as [1948] amended]). 411.1 Michigan Reports. employees general of
tion
interest
application
enlarged
but
not be
be
welfare,
yond
its
legislature.
expressed by the
limitations
compensation law
of the action
have the
because
We
department
govern
law-maldng
of the State
duty
con
ment. This
is limited to
Court
legislative
expression
struing
in ac
will
specific language
applying
used and
cord with
accordingly.
prior
to con-
In
decisions
has declined
this Court
authorizing
payment
Michigan act
strue the
injured
compensation
a result of
to one
who
though
injured
“horseplay,”
the one so
was
even
Tarpper
participant.
Co., 200
Weston-Mott
not
v.
(LRA1918E, 507);
Ford Motor
Mich
Steffes
Wyant
Campbell,
&
Co.,
501;
Mich
Jones
Can-
Foundry
plain-
non
358.
Mich
Counsel
Reynolds Spring Co.,
tiff
to Glenn v.
calls attention
1464),
an award of
The facts in the ease at bar are not Reynolds supra. Spring those in Glenn v. Here plaintiff willing participant awas in the course injury, of conduct that resulted in his which conduct had been continued for several minutes at least prior eye. boys being to his struck in the These They age not children. were of sufficient and under- standing capable doing as to be the work for which they They by were hired. had been warned their employer throwing to refrain from missiles at one employer working another, but while the was where constantly they disobeyed he could not observe them given. They age the instructions were of sufficient understanding to realize that serious might their spirit result from acts. Nonetheless, apparent they recklessness, continued throw at one another. missiles
Significant provision in this connection is denying compensation the statute, above noted, employee injured an reason of his intentional young- and wilful misconduct. The acts of these men were deliberate and intentional. In view of the warning they knowledge had received and the danger inherent in their conduct, conclu- fully justified wilfully. sion is In acted Waldbauer v. Bean Mich Co., 278 award Court, was vacated showing the established facts that the had deliberately disregard by gas poisoning risked death regulations concerning the use of said gas imposed by employer. statute *24 Michigan Reports.
'332 [July- obviously deemed a bar to compensation although was at time Waldbauer in the course acting his employment. - In the plaintiff companion, instant case in course of conduct engaging resulted were not engaged serious to plaintiff, their employees otherwise performing duties as of the the con- serving employer. interests On trary, they were what had been forbidden they doing to do. The specific provision of the stat- ute for providing injuries received in the course of and out of the arising employment not be facts may construed as under the applicable in the instant his com- case. While plaintiff at another one missiles panion were not in the throwing may
course of their nor employment, there- reasonably be said such conduct arose from. No claim is made that the of missiles throwing at one another kind of in the employees engaged work which these employed men were young In words, other conduct customary. be considered incidental employment character in question. of Lauscher v. Ward & Montgomery case
Company, 327 Mich involved the Inc., question whether arose employee sustained out of and in the of his Said course contain- employee was directed to remove a drum an antifreeze to the ware- mixture defendant’s ing of his duty. house. Such removal was the extent in an However, he the drum proceeded empty set fire to He had been alley, liquid. given and to not to fires express light but, instructions The injury, at instructions. bar, case violated such from an proved fatal, explosion which resulted An of compensation the inflammable award liquid. minor child of the to the widow and *25 Chilly Ballou. ground provisions that, under set aside on the the compensation payable. was statute, findings ap In the instant the factual case peal compensation board, on the of which basis fully by supported proofs denied, were taken By findings before the referee. Court is this (Stat § bound. CL 413.12 Ann 1950 Bev 17.186). presented The situation somewhat un question employee usual. deliberately who an is whether intentionally participates a may injury, in course of conduct that result in vio specific employer, lation of the instructions his compensation is entitled to At under our statute. tention has been called to other States decisions from nonparticipants horseplay in which been in so-called have particular under the in held, circumstances pertinent statutory provisions, volved, and entitled compensation. Among to such such decisions is Champlain Leonbruno Mills, NY 470 Silk 522), frequently by NE 13 ALR cited text writers courts. There claimant compensation eye apple by was struck in the an by thrown one fellow at another. Claim part horseplay, ant took no in the so-called had knowledge apple. of it until he was struck theory An award was sustained on the the in jury 472) (p arose because of “associations and con inseparable factory sig ditions life.” It is nificant to note that the court differentiated case prior from joined decisions which the who had claimants horseplay have de considered to parted from their For obvious reasons regarded the New York not be as au holding thority appeal for a reversal of the decision of the present proceeding. board in the participant Plaintiff a here was the conduct that injury. engaged led While so he was not in employment the course of his nor did his re- Beports. companion were not He and his therefrom. suit may perhaps working obtain under conditions large of men and numbers some factories where in boys here employed. concerned are we Neither are a sportive spur indulged single act employee. Bather, we of the moment careless extending appreciable of acts over have series except part taking therein interval with no one plaintiff fellow workman. and his pur- general Notwithstanding the humanitarian compensation act poses workmen’s thereby legislature authorized State, the has not payment sustained for an *26 by appeal board. found under the circumstances by said board the facts the order entered Under to defend- affirmed, correct and should be with costs ants. J., J., C. concurred with
Dethmers, Kelly, and Carr, J. Douglas Crilly (concurring). atwas J. Edwards, years age. He
the time of this a minor 16 accident employed by ac- who, had been Ballou one Clarence cording of defend- record, to the was subcontractor doing "Wisdom, Wisdom ant Sam B. as business Siding, Booting defendant Trav- & insured Company. elers Insurance boys, apparently employed includ- Ballou several plaintiff stepson ing Wozniak, Arthur and his own aged application 16, about him in the assist Crilly siding Douglas new on house construction. only days, relationship full on the in this worked right eye injury last of which he received subsequently which the loss of occasioned industrial vision therein. Crilly Douglas
Both were at Arthur Wozniak injury illegally employed defend- the time of the Chilly v. Ballou. years age, ant Ballon in that and were below 18 permit that work had either been secured required by (CL §409.1 PA 1947, No 157 seq. [Stat seq.\), et Ann 1950 Bev 17.701 et com- monly called the “ITittle act.” reviewing testimony
After various conflicts injury (it appearing to how this occurred that both hoys originally deny horseplay undertook to same), majority appeal which occasioned following finding: board entered the Douglas Crilly “We find as follows: and Arthur engaged immediately playfully throwing objects Wozniak were injury preceding at each other Douglas July During 1953. of such course shingle Douglas right conduct a struck piece eye inflicting causing serious loss eye. Douglas industrial vision in such and Wozniak engaged horseplay which resulted injury. the employer, Ballou, their had not condoned horseplay. He had warned and instructed them against it. At the time the accidental oc- curred Ballou was outside and did not ob- house particular Douglas Crilly serve the incident. did personal injury arising receive out of and in employment.” the course of his paralleled finding finding
This Delbert of the referee. compen- member of the Storie, workmen’s appeal dissenting opinion, *27 sation a board, filed essence which be summarized as follows: “Employers reap who choose to the labors of these bring together immature children and them must accept responsibility immaturity. aas such antics enough say they It not is for them to did not condone Employers reap the acts. who of our bounties permitted minor children’s labors must not he to escape responsibilities injuries occurring be- judgment cause of the immature of those choose employ. proper to It is to the cost of assess such Michigan Reports. products
injuries labors.” minors’ these created to the findings accept required course, are,We appeal evidence there is where of fact of the board (Stat § Ann 1948, 413.12 to sustain the same. CL 17.186). § however, obvious 1950 Rev is, appeal majority felt constrained board Crilly “Douglas finding, namely, that enter their last personal injury arising of and out did receive employment,” their because of course of his finding “Douglas preceding and Wozniak of fact that horseplay engaged which resulted injury,” application previous de thereto dealing horseplay: of this Court cisions Tarpper (LRA v. Weston-Mott 200 Mich Campbell, Wyant 507); 1918E, v. Jones & Cannon Foundry Co., Detroit 284 Mich Derhammer 358; News, Co., 239 658; 229 Mich Ford Motor Steffes Mich 501. judicial
These cases stand for a restriction effect of workmen’s statute generally, injuries resulting to the effect that n horseplay employment the course cannot compensable. any regarded do not find We limitation in the statute itself. ap- situation, there are
As our current fact statutory part plicable provisions: that of First, 2, personal employee aris- “An who receives * * * employment ing out in the course of his of and (Stat compensation.” § paid 412.1 CL shall be 17.151). § Ann 195ÓRev part § provision 2: The second injured in- of his “If reason shall not receive misconduct, wilful tentional and provisions compensation 1948, act.” CL under the 17.152). § (Stat Rev 412.2 Ann 1950 *28 Chilly v. Ballou. statutory controlling These 2 tests are the factors in this case. I concur with Mr. Justice Smith’s ex- cellent discussion of the common-law doctrines “liability “scope employment” based on fault” and holding they entirely and his a workmen’s that are irrelevant in
compensation proceeding, being there no such restrictions the statute. questions (1)
Our this case are, therefore, Did the accident arise out of and in the course of employment; (2) itWas due to wilful miscon- part on duct claimant.
As to the these, first of all is conceded that this accident arose course of Douglas Crilly testified that at the time of the acci- carrying shingles up dent he was the stairs floor second of a house under Arthur construction. up cleaning he testified that Wozniak cutter which struck was around the process piece shingle and in that threw the Douglas. question real
Our Did arise the accident out of is, employment? appeal Douglas’ board indicated disbelief testimony horseplay, that it the extent denied certainly conclusion, this on this within record, statutory (Stat § their 413.12 discretion. CL 17.186). Ann 1950 Rev boys appear,
It does that however, were both job at the and there is no evidence which time, testimony disputes actually their en- object gaged in the work. The which occasioned scrap shingle was a Arthur had which Douglas. playfully and which cut threw at argued shingle casting If it be that the by boy’s spirits than, caused animal rather employment, part, certainly answer, employer; policy law, in violation of State boy. spirits fit to animal In saw hire the unjustifiably nar- view, writer’s it would take Michigan Reports. *29 of” and “in the of the words “out row construction course employment that this to hold of” the arise. did not thus finding appeal the second entered no board statutory disqualification, ground possible “wil that the feel, however, We do not ful misconduct.” disqualification on before would sustain record this us implies something- ground. Wilful misconduct negligence, than a violation than and more more Corpo Gignac v. Studebaker rules or instructions. Beaudry Watkins, 191 Mich ration, 574; 186 v. Mich Dairy, 576); Day (LRA1916F, Gold Star v. Mich 383. Boynton Neubeck, also, Cab Co. 237 Wis
See, (296 636); Boynton Schroeder, Cab NW Co. 642); Milling M. NW F. A. Co. v. 264Wis Compensation Unemployment Commission, 350 Mo 239). ALR SW2d the extent cited, Jones, we feel that to For reasons Tarpper, Derhammer, that the Steffes supra, represent holding by Cases, this Court injury, personal horseplay where occasions recovery fact in a workmen’s of and itself bars proceeding, overruled. are findings With last them, the sentence having appeal based, been falls, board likewise on the case law now overruled. view, our this in view of More need not be said in matter comprehensive opinion, with which Justice Smith’s except gen- point for the the writer at concurs holding pertaining malicious eral discussion aggressor therein. The instant case, cases contained require my line in of cases. decision on this view, does exception and with the For the indicated reasons opinion I noted, concur result Mr. Justice Smith.