Fireman's Fund Indemnity Co. v. Industrial Accident Commission

WOOD (Parker), J. The compensation insurance carrier of the employer of the decedent, Marin Yragnizan, seeks by this petition for review to annul a death benefit award made by the Industrial Accident Commission in favor of the widow and minor children of decedent. The question for decision is: Was the injury which caused the death of Marin Yragnizan an injury arising out of and occurring during the course of his employment?

The decedent was employed as a janitor in a saloon in San Pedro. The employment agreement provided that the decedent should do the janitor work after the saloon was closed at 2 a. m. and before it was opened at 6 a. m., in order that such work would not interfere with the customers; and it provided further that decedent should not have a key to the place, but he should be in the saloon when it was closed in order that he might be locked therein from the time it was closed at 2 a. m. until it was opened at 6 a. m. The owner left the place each day about 11 p. m. and was not present at closing time. Two bartenders, who were in charge of the saloon after the owner left, closed the saloon and locked the janitor therein each night. Decedent had been so employed three weeks preceding the injury, and on occasions during that time, when there was no business, the bartenders closed the saloon one-half hour or an hour earlier than 2 a. m. The decedent usually left his home, which was about 12 blocks from the saloon, about 1 a. m., and arrived at the place each day a few minutes or one-half hour earlier than 2 a. m. in order to get his janitor’s equipment ready, and to be there in time to be locked in the building if it should be closed before 2 a. m. On the day of the injury the decedent arrived there about 1:15 a. m. When he entered the place he was carrying an article which appeared to be a pail, and he went immediately to the back storeroom. About five minutes thereafter he came back to the barroom, and in a playful manner “made a couple of passes” at one of the bartenders, and then sat at the bar. About 1:30 a. m. he was killed by a gunshot fired at one of the bartenders.

One Jerkins, who was a Croat, and one of the bartenders, [337]who was a Serbian, were friends, but they had had arguments on various occasions about the war. About 11 p. m., preceding the injury, Jerkins entered the saloon and began singing “funny” songs in Slavonian. There were a few customers in the place at that time. The duties of the bartender included that of maintaining peace and order, and ejecting disorderly persons from the saloon. The bartender (the Serbian) told Jerkins to quit such singing because people did not enjoy it in wartime. Then Jerkins in a loud voice called the bartender’s father and mother vile names. After the bartender told him to quit and that if he did not quit the bartender would throw him out of the saloon, Jerkins reached across the bar and, with his fist, hit the bartender on the forehead. Jerkins then took his (Jerkins’) coat off and asked the bartender “to come outside.” When they were on the sidewalk in front of the saloon door the bartender knocked Jerkins down twice. After the fight on the sidewalk, Jerkins went back into the saloon and the other bartender ejected him. Jerkins said he was “going to get” the bartender who had knocked him down.