Ferrell v. State Compensation Com'r
| Decision Date | 23 January 1934 |
| Citation | 172 S.E. 609,114 W.Va. 555 |
| Parties | FERRELL v. STATE COMPENSATION COM'R. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Where elected constable employed as coal tipple worker and peace officer, was fatally shot on employer's property while endeavoring to preserve peace, presumption existed that constable was acting as "public official" and not as "employee," hence his widow was not entitled to compensation out of Workmen's Compensation Fund (Code 1931, 6-3-1; 23-2-1).
Where a constable, employed to work on a coal tipple and to act as a private peace officer for his employer, was shot and killed on the employer's property while endeavoring to preserve the peace, he is presumed to have been acting as a public official and not as a private employee. Therefore his widow is not entitled to compensation out of the workmen's compensation fund.
Proceedings under the Workmen's Compensation Act by Florence Ferrell to recover compensation for death of Ell Ferrell, employee of the Glen Alum Coal Company. From an order of the State Compensation Commissioner refusing compensation, the claimant appeals.
Affirmed.
Goodykoontz & Slaven, of Williamson, for appellant.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for State Compensation Com'r.
Claimant widow of Ell Ferrell, deceased, was granted an appeal from an order of the compensation commissioner refusing compensation on the ground that the death of her husband was not due to an injury received in the course of and resulting from his employment.
Deceased a duly elected constable of Stafford District, Mingo County was employed by the Glen Alum Coal Company in said county in the dual capacity of tipple worker and peace officer, at a monthly salary of $100.00. On the morning of February 28, 1932, about 2 o'clock, deceased went out from his home situated on his employer's property to investigate some shooting which he had just heard in the immediate neighborhood. The shooting evidently had taken place in the home of John Amos, likewise on the property of the employer. As deceased approached the Amos home two additional shots were fired therein. Deceased entered the house unresisted and soon after entering, while talking with John Amos, was shot in the back and killed by Tom Amos, later convicted of murder.
Deceased's chief employment was that of peace officer at regular salary paid by the coal company, irrespective of the time he worked on the tipple. He was permitted by the company at all times to answer calls for performance of his official duties as constable of Mingo County wherever his services might be required.
Should the claimant be awarded compensation on the theory that her husband's death came as the result of an injury received by him in the course of and resulting from his employment, or should she be denied compensation on the ground that his injury was incurred while he was engaged in the discharge of his duty as a public officer of Mingo County?
On behalf of claimant, we are referred to several cases from other jurisdictions wherein compensation has been allowed on account of injuries received by public officers while discharging the duties of peace conservators in the course of private employment. Typical among those cases are Stearns Coal & Lumber...
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