Schwartz v. Golden , 126 Mich. App. 790 ( 1983 )

126 Mich. App. 790 (1983) 338 N.W.2d 218

SCHWARTZ
v.
GOLDEN

Docket No. 63977.

Michigan Court of Appeals.

Decided July 6, 1983.

Levin, Levin, Garvett & Dill (by Richard M. Selik), for plaintiff.

Grant, Boigon, Schon & Wise, P.C. (by Stanley E. Wise), for defendant.

Before: BRONSON, P.J., and J.H. GILLIS and MacKENZIE, JJ.

MacKENZIE, J.

In this action for assault and battery, after a jury trial in district court, a verdict was returned for plaintiff in the amount of $15,000. Defendant's appeal to circuit court was dismissed for failure to file an appeal bond, and this Court granted defendant's application for leave to appeal.

The circuit court erred in dismissing defendant's appeal. Wright v Fields, 412 Mich 227; 313 NW2d 902 (1981). However, in the interests of judicial economy, we will resolve the issue defendant sought to raise in circuit court.

An action against a coemployee for personal injuries is barred if both employees were acting in the course of their employment at the time the injury occurred. MCL 418.827(1); MSA 17.237(827)(1); Helmic v Paine, 369 Mich 114, 119-120; 119 NW2d 574 (1963); Fidelity & Casualty Co of New York v DeShone, 384 Mich 686, 690-691; 187 NW2d 215 (1971). Issues concerning injuries and whether they arose out of and in the course of employment must be initially submitted to the Bureau of Workers' Disability Compensation for determination as to jurisdiction and liability. Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976); Herman v Theis, 10 Mich App 684; 160 NW2d 365 (1968); Bednarski v General Motors Corp, 88 Mich App 482; 276 NW2d 624 (1979); Dixon v Sype, 92 Mich App 144; 284 NW2d 514 (1979); Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981); Johnson v Arby's, Inc, 116 Mich App 425; 323 NW2d 427 (1982); Houghtaling v Chapman, 119 Mich App 828; 327 NW2d 375 (1982).

Only cases in which employment is clearly unrelated to the cause of action may be commenced in circuit court without an initial determination by the bureau. Compare Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), with Neal v Roura Iron Works, Inc, 66 Mich App 273; 238 NW2d 837 (1975). It should be noted that Dixon v Sype, supra, and Houghtaling v Chapman, supra, were actions against coemployees which turned on whether plaintiff was acting in the course of his employment. Cases in which the key issue was whether defendant was acting in the course of his employment have been treated as within the jurisdiction of the circuit court. See Herndon v UAW Local No 3, 56 Mich App 435; 224 NW2d 334 (1974), and Johnson v Arby's, supra. The latter case provides a particularly striking example of this distinction, because the Johnson Court, in disposing of plaintiff's claim against his employer, recognized that whether plaintiff was acting in the course of his employment was an issue within the bureau's exclusive jurisdiction. The distinction is justified because, in view of MCL 418.827(1); MSA 17.237(827)(1), whether defendant was acting in the course of his employment is irrelevant to whether plaintiff can obtain workers' compensation benefits.

Not every assault is outside the course of employment. In Crilly v Ballou, 353 Mich 303, 326-327; 91 NW2d 493 (1958), the Court held that purely personal, non-work-connected, disputes and acts of such gross and reprehensible nature as to constitute intentional and wilful misconduct were outside the course of employment but that "horseplay" and assaults resulting from the stresses, tensions, and associations of the working environment, human and material, were within the course of employment. Here, plaintiff and defendant were furniture salespersons and were paid on a commission basis. It was undisputed that the assault and battery resulted from a dispute between plaintiff and defendant as to which of them would wait on a particular customer. Therefore, the assault and battery committed by defendant resulted from the stresses, tensions, and associations of the working environment, and defendant was acting in the course of his employment when he committed the assault. Compare Herndon v UAW Local No 3, supra, in which the assault resulted from a labor dispute.

Plaintiff could still recover if it was determined that he was not acting in the course of his employment when assaulted. However, in view of Crilly v Ballou, supra, it cannot be said that plaintiff was so clearly outside the course of his employment when assaulted as to fall within the exception stated in Panagos v North Detroit General Hospital, supra. We therefore apply a remedy analogous to that applied in Bednarski v General Motors, supra, p 487; Dixon v Sype, supra, pp 149-150; Johnson v Arby's, supra, pp 431-432, and Houghtaling v Chapman, supra, p 832. We remand this case to district court. Plaintiff shall, within 30 days of the release date of this opinion, file an application for a hearing on the question in controversy with the bureau. If such an application is timely filed, the district court shall hold this case in abeyance pending the bureau's decision. If the bureau finds that plaintiff was acting in the course of his employment at the time the injury occurred or if plaintiff fails to file an application with the bureau within 30 days, the district court's decision is reversed. If the bureau finds that plaintiff was not acting in the course of his employment at the time the injury occurred, the district court's decision is affirmed.

Remanded for further proceedings consistent with this opinion. We retain no jurisdiction.