Derhammer v. Detroit News, 96.

• Decision Date: 03 April 1925
• Docket Number: No. 96.,96.
• Citation: 229 Mich. 658,202 N.W. 958
• Parties: DERHAMMER v. DETROIT NEWS et al.
• Court: Michigan Supreme Court

229 Mich. 658

202 N.W. 958

DERHAMMER

v.DETROIT NEWS et al.

No. 96.

Supreme Court of Michigan.

April 3, 1925.

Certiorari to the Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act (Comp. Laws, §§ 5423-5495) by Joseph F. Derhammer, Jr., claimant, opposed by the Detroit News, employer, and the General Casualty & Surety Company, insurer. Claimant was awarded compensation, and the employer and insurer bring certiorari. Award reversed and set aside.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.F. T. Witmire, of Detroit, for applicant.

Alexander & Ruttle, of Detroit, for respondents.

SHARPE, J.

Defendants review by certiorari an order of the department of labor and industry, awarding plaintiff compensation for an injury sustained by him on September 17, 1921. The only question presented is, Did the accident raise out of the employment?

The facts are not in dispute. Plaintiff was in the employ of the Detroit News as driver of an electric truck used in making deliveries of papers to the railroad stations. He had nothing to do with the loading of the papers. He was simply required to be within calling distance when the truck was ready to go out. A number of other men were similarly employed. Plaintiff testified:

‘Why, as I say, I was sitting there on the paper drop when the boys, Mr. Billington and Mr. Ames, walked in with a mouthful of water and stood in front of me and squirted the water on me. They turned around and walked out, and I told them to quit it before they went out, and they didn't say anything; they just laughed. Pretty soon they come back with another mouthful. Mr. Billington squirted the water, but Mr. Ames did not at that time. I told them to quit. I asked them to quit a good many times. I walked out in the other room, and I got a mouthful of water, and I came back, and I squirted that water on them. I sat down again, and pretty soon they come back with a can of water, and I knocked the can of water out of Billington's hand. The same thing occurred two or three times. I got the same can of water and set it on the back of a repair truck just outside the door where I was, and I walks over and stands in another driveway door leaning against the doorway, and the boys commenced to gather round me, you know; I was pretty sore. Finally, Billington came up in front of me, and on the other side was Mr. Ames, and they commenced to kid me and everything. I didnt's know they had any water, but the water was sitting on the opposite driveway from me, on the back of the truck. He threw water all over me again, and then runs and gets upon the paper-the loading dock. I am in the other room, and there was Ames with a pail of water which he didn't throw up at all. I walked to him and said something-I can't remember what it was-but he put the water down. Mr. Billington had somebody else on his truck that drives it outdoors for him, as far as, Third street, and he gets on its himself, and I didn't get him. When he comes back in, I was up on my machine, and I walked up to him, and I says, ‘Are you going to quit this?’ I said, ‘Somebody is going to get hurt,’ which I had repeated many a time before. I asked him in a quiet way, ‘Are you going to quit, or somebody will get hurt?’ He was talking to somebody else. I walked down probably five machines further, and stood with my back to him; I member Mr. Beaushaw sitting in his truck, my back to him, looking at the dock. I had a bottle in my hand. I turned just in time-I heard something; I heard somebody holler-to see Mr. Billington coming, running. I ducked my head like that, and he bumps into me, pushes me backwards, with the bottle in my hands, which breaks and cuts the cords of my fingers.'

He further testified that he talked with the foreman of the room about it:

‘Yes; when I walked back from chasing Mr. Billington out, I...