Appleford v. Kimmel, 37.

• Decision Date: 11 March 1941
• Docket Number: No. 37.,37.
• Citation: 296 N.W. 861,297 Mich. 8
• Parties: APPLEFORD v. KIMMEL et al.
• Court: Michigan Supreme Court

297 Mich. 8

296 N.W. 861

APPLEFORD

v.KIMMEL et al.

No. 37.

Supreme Court of Michigan.

March 11, 1941.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law by Lawrence Appleford, employee, opposed by Louis Kimmel, doing business as Washington Theatre, employer, and the State Accident Fund, insurer. From an award of the Department of Labor and Industry requiring the employer and the State Accident Fund to pay compensation, the defendants appeal in the nature of certiorari.

Award affirmed.

Argued before the Entire Bench.

Harry F. Briggs, of Lansing (Roy Andrus, of Lansing, of counsel), for appellants.

Mason, Davidson & Mansfield, of Detroit (Walter A. Mansfield, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

Defendants appeal from an award by the Department of Labor and Industry, requiring them to pay compensation for an accidental injury which plaintiff claims arose out of and was sustained by him in the course of his employment. Defendant Louis Kimmel owns and operates the Washington Theatre in Royal Oak, Michigan. Plaintiff Appleford had been employed by Kimmel for about 10 years prior to the accident, first as usher and during the last four years as an assistant manager. Appleford's duties as assistant manager required him to handle disturbances in the theatre either when they were discovered by him or when they were reported to him by the ushers, and, if necessary, it was his duty to call the police.

On New Year's Eve, 1938, while the theatre was crowded, several patrons who had been drinking were ordered by Appleford to leave the theatre because of the disturbance they were creating. Upon their refusal to leave and before the police could be called, other patrons began to evict the disturbers. In the melee an usher shoved Peter Strachan, one of the disturbers, down the steps of the theatre. Appleford at the time was six or eight feet away from Strachan.

On May 28, 1939, Strachan and some of the participants in the New Year's Eve disturbance again visited the theatre and indulged in boistrous and offensive conduct. Appleford ordered them to leave the premises and, upon their refusal, called the police. The disturbers, anticipating the arrival of the police, left the theatre, but lingered in the vicinity. After Appleford closed the theatre he started for home and, within a few blocks, discovered that he was being followed. A group, including Strachan, stopped Appleford and demanded an apology for the ejection of Strachan on New Year's Eve. This was refused by Appleford. Strachan then struck at Appleford, who attempted to restrain him from delivering any blows, and held him until the police arrived. Appleford informed the police that, ‘These are the fellows that I called about from the theatre.’ The events that followed are described by the Department of Labor and Industry as follows: ‘The plaintiff asked them for further protection, but the estimable guardians of the peace felt that they had fulfilled their obligation when they stopped the immediate altercation and advised the parties that they should take their fight out of town. The gang of rowdies evidently thought that the peace officers' suggestion was a splendid idea, for they immediately started to lead the plaintiff out of town for the purpose of having their entertainment. They led the plaintiff by the arm, but after going about a block he gave additional resistance, and the said individual, who was scheduled as one of the principals, became very courageous and struck him from behind and fractured his jaw in four places.’

Plaintiff's claim for compensation, denied by the commissioner, was allowed by the department with the finding that ‘plaintiff's injury clearly arose out of and in the course of his employment.’ In support of this conclusion, the department said: ‘His duties as assistant manager required him to handle disturbances arising in the theatre. In the performance of those duties, he was subjected to the risk of incurring the displeasure of such rowdy elements as are herein involved. As a result of this risk he was subjected to injurious assault. The fact that he was assaulted on the street and not in the theatre was merely happenstance and did not make the assault any the less incident to his employment. His accidental injury had its origin in a risk connected with his employment and developed from that source as a natural consequence.’

An order was entered requiring defendants to pay plaintiff compensation for total disability at the rate of $16.67 per week from May 28, 1939, to July 7, 1939, and for partial disability at the rate of $10 per week from July 7, 1939, to August 31, 1939. Defendants were also required to pay certain hospital and medical expenses incurred by plaintiff.

Defendants argue that plaintiff's injuries are not the result of an accident which arose out of and in the course of his employment. 2 C.L.1929, § 8417, Stat.Ann. § 17.151.

In Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N.W. 325, 326, L.R.A.1916A, 310, the court said: ‘It is well settled that, to justify an award, the accident must have arisen ‘out of’ as well as ...