Crilly v. Ballou

• Decision Date: 15 July 1958
• Docket Number: No. 32,J,32
• Parties: Douglas Stephen CRILLY and Leo Francis Crilly, Guardian of the Estate of Douglas Stephen Crilly, a minor, Plaintiffs-Appellants, v. Clarence Samuel BALLOU, Sam B. Wisdom, individually and d/b/a Wisdom Roofing & Siding, John Pinarelli, and The Travelers Insurance Company, Defendants-Appellees. an. Term.
• Court: Michigan Supreme Court

Page 493

91 N.W.2d 493

353 Mich. 303

Douglas Stephen CRILLY and Leo Francis Crilly, Guardian of the Estate of Douglas Stephen Crilly, a minor Plaintiffs-Appellants, v. Clarence Samuel BALLOU, Sam B. Wisdom, individually and d/b/a Wisdom Roofing & Siding, John Pinarelli, and The Travelers Insurance Company Defendants-Appellees.

No. 32, Jan. Term.

Supreme Court of Michigan.

July 15, 1958.

William S. Plotkin, Detroit, for plaintiffs-appellants.

Lacey, Jones & Doelle, Detroit for Sam B. Wisdom, individually and d/b/a Wisdom Roofing & Siding, and Travelers Ins. Co., defendants-appellees.

Before the Entire Bench.

SMITH, Justice.

Once more we consider the great remedial statute, the workmen's compensation act. The case before us involves a boy of some 16 years. He and a teen-age friend had been employed by a contractor engaged in roofing and siding work. From time to time they would throw shingles and nails back and forth at each other. These acts, assaults in point of law, arose from youthful exuberance, rather than from vindictiveness, or animosity. Nevertheless, the last shingle thrown put out the claimant's eye. He claims compensation. In opposition it is said that the injury did not arise out of and in the course of the employment.

We are here in the general area of the assault cases. The particular type of assault now before us is in the sportive assault. Its labels are as varied as the acts themselves. It is sometimes called fooling, or practical-joking, horseplay, or larking. It knows no bounds of occupation or calling, or time, or location, as its very terminology reveals. Thus the larking of the English youths, when undertaken on the great ships of said, with their towering masts so nearly scraping the sky itself, became 'skylarking.' Whatever the term employed, however, this particular kind of assault is, for the purpose of the social evils sought to be remedied by this act, governed by principles essentially similar to those applicable to the malicious assault. The workman blinded on the job by a fellow worker may console himself to some degree if the blinding were merely sportive, not malicious, but his family's loss of income recognizes no such distinction, nor does the economic burden necessarily assumed by charity, public or private, in the extreme cases. So far as sheer numbers is concerned, the weight of authority seems against recovery in this type of case. If, however, in the language of the chemist, we turn from a quantitative to a qualitative analysis the weight is squarely contra. The recent equal division of this court in a case related in principle (Stewart v. Chrysler Corporation, 350 Mich. 596, 87 N.W.2d 117, relying upon the aggressor rule of Horvath v. La Fond, 305 Mich. 69, 8 N.W.2d 915) warrants our re-examination of the problem in its entirety.

The arguments against recovery in this type of case are well known. In the first place it may be said that the employee was not hired to throw shingles, or nails, but to work. (This is an ancient and now discredited argument originally made to refute the existence of the employment relation itself in actions seeking to hold the master for the torts of his servant. Compare Limpus v. London General Omnibus Co., 1 H. & C. 526, 158 Eng.Rep. 993 (1862), wherein it was said, per Wightman, J., dissenting, that 'The defendants' coachman was not employed to obstruct or hinder the plaintiff's omnibus, * * *' with Stillwagon v. Callan Brothers, Inc., 183 App.Div. 141, 170 N.Y.S. 677, 679, a compensation case, where the court, in denying recovery, held that 'He was not employed as a fighter; his work was driving the truck and helping to load it * * *.') Since, then, the employee was not hired to throw things (nails, rolls, apples, hot ashes, or stones, to cite a few instances from the reported cases) if he was injured in so doing, it is argued that he was injured 'outside the scope of his employment.' Or, it is somethimes said, the injury received under such circumstances, arose from the workmen's own fault, or possibly, the fault of a fellow workman. At any rate, it was not the employer's. In other cases, it is pointed out that the injured claimant participated in the action, sometimes even started it. This being the case, it is urged, he must necessarily be denied recovery, otherwise he would profit by his own wrong. At times, indeed, the claimant is permitted to recover. In some such cases, the courts point out, the employer could foresee what was going to happen and did nothing. Or, it is pointed out in other cases, he knew of the goingson and did nothing to stop them, hence it might reasonably be said that there was an implication of authority so to act.

What is all this talk of fault, of negligence, of scope of employment, of foreseeability, of implied authority? We once lived in a paradise of these concepts, a veritable legalistic Garden of Eden, so completely out of touch with the realities of industrial life that those who came before us for succor, the halt and the blind, the victims of industrial accidents, were almost invariably turned away empty handed. It was the reaction of our people to these unrecompensed injuries that found expression in the workmen's compensation acts. A philosophy that is today no longer new demanded that the product pay its own way, that the human material consumed in its manufacture be purchased with the same coin as the coal and iron ore going into its production. 'Workmen's Compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital--the one for the sake of the wages and the other for the sake of the profits.' ¹ Let the bench and bar ponder well, as our course of decision in this area in the past decades is reviewed, that the words quoted are those of Mr. Justice Sutherland, the year spoken was not 1958 but a quarter century earlier, 1923, and the court was the Supreme Court of the United States. The theory of the acts was clear: The consuming public, not charity, public or private, must foot the bill for work-incurred injuries. Compensation, moreover, was not to be barred by fault, or neglect, or inattention, that is, for the mere human failings of the workman. In short, no longer need the workman be free from fault to receive recompense. The family of the careless worker, as well as him more careful, knew privation and sorrow when injury stopped income. True, the injured workman would not get full 'damages' as that term is used in the law. The amount of his recovery was carefully circumscribed. It was limited to interference with earning capacity. The workman might be so grotesquely disfigured as to shock even the insensitive, yet for this harm there was no compensation, unless aided by statute. He might, indeed, be so mangled as to have lost his sexual organs, but even eunuchs can work and hence under compensation laws he is entitled to nothing. Smith v. Baker, 157 Okl. 155, 11 P.2d 132. A jury, of course, might in either of these instances, as well as others, be persuaded to the contrary, but the workman has given up his common- law action, and can no longer seek damages from a jury. However, there was a giving on both sides. In return for the workman's limited monetary recovery he got the certainty of adequate compensatory payments without recourse to litigation.

Such, at any rate, was the plan. It was a vain hope. For its relative failure the courts must assume a sobering responsibility. What our people, in their understanding, have attempted freely to give, we of the judiciary, in our tenacious adherence to inapplicable concepts of the common law, have in many cases withheld. Courts unfamiliar, or unsympathetic, with the broad humanitarian objectives of the act have permitted the retention, in its interpretation, of such tort and agency concepts as fault, authority (express or implied), foreseeability, knowledge, and scope of employment, the very concepts, in fact, that caused the breakdown of the common-law law remedy in the first place and necessitated the passage of the act. They are completely out of harmony with its objectives. Thus we continue to flog the patient with the same whips that laid him low in the first place and 'confusion and conflict' ² reign in our minds and in our opinions as we wonder why he fails to recover his health.

So it is that we get to the assault cases, a type of case involving, just as clearly as in event of negligence, a degree of culpability, of fault, on the part of the workman, either the claimant himself, or his fellow workers. The earliest of the sportive assault (the fooling, or horseplay, or skylarking) cases denied recovery. Their reasoning reveals their misconceptions. Thus Armitage v. Lancashire & Yorkshire Ry. Co., [1902] 2 K.B. 178, involved three boys. Two were larking. A third was hit in the eye by a piece of iron thrown by one of the larking pair. Recovery was denied: 'This was a wrongful act entirely outside the scope of the employment.' Here, it will be noted, the court is falling back upon a concept (scope of employment) entirely foreign, both in orgin and application, to the principles underlying the passage of compensation legislation. Scope of employment has its uses, it is true, in the application of the doctrine of respondeat superior. But compensation does involve respondeat superior and recovery in compensation cases turns not on the common-law concept of scope of employment but upon the statutory requirement of course of employment. The two concepts have a different content. In fact, distinguished students of the subject have stated that, 'perhaps the most important guide' for the interpretation of the expression 'arising out of and in the course of his employment' is to 'realize...