Geeslin v. Workmen's Compensation Com'r

• Decision Date: 02 July 1982
• Docket Number: No. 15287,15287
• Court: West Virginia Supreme Court
• Parties: Daniel GEESLIN v. WORKMEN'S COMPENSATION COMMISSIONER and Irvin H. Whitehouse Co.

Page 150

294 S.E.2d 150

170 W.Va. 347

Daniel GEESLIN v. WORKMEN'S COMPENSATION COMMISSIONER and Irvin H. Whitehouse Co.

No. 15287.

Supreme Court of Appeals of West Virginia.

July 2, 1982.

Syllabus by the Court

1. Where an altercation arises out of the employment, the fact that claimant was the aggressor does not, standing alone, bar compensation under the West Virginia Workmen's Compensation Act, W.Va.Code, 23-1-1 et seq., for injuries claimant sustained in the altercation.

2. The Syllabus of Jackson v. State Compensation Commissioner, 127 W.Va. 59, 31 S.E.2d 848 (1944), is overruled. Claytor v. Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920 (1959), and Turner v. State Compensation Commissioner, 147 W.Va. 106, 126 S.E.2d 40 (1962), are overruled to the extent they are inconsistent with the principles enunciated herein.

3. "Under Code, 23-4-2, wilful misconduct will not bar compensation unless the injury is the result thereof." Syllabus Point 2, Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804 (1941).

McIntyre, Haviland & Jordan and Terry M. Jordan, Charleston, for appellant.

Kay, Casto & Chaney, Michael T. Chaney and Stephen A. Weber, Charleston, for appellees.

McHUGH, Justice:

Daniel Geeslin appeals an order of the Workmen's Compensation Appeal Board which denied him compensation benefits on the ground that his injury was a result of his willful misconduct and, therefore, not compensable. We find the Appeal Board clearly erroneous in its application of the law, and reverse and remand.

Geeslin was injured during a fight with Nathan Koons, a foreman employed by appellee, Irvin H. Whitehouse & Sons Co., a commercial painting firm. The setting and events leading up to the altercation are important to the resolution of this appeal. Koons and Geeslin related two very different accounts of the fight.

Koons testified that he had received information that Geeslin was not keeping up with his work on a large painting job to which he and several other Whitehouse employees were assigned. As Geeslin's foreman, Koons went to Geeslin to ask him to attempt to keep up with the rest of the paint crew. No harsh words were exchanged, and Koons thought that the conversation had ended amicably when, as he started to leave, Geeslin turned from his workplace and directed a stream of paint from his spray gun at Koons' face. Koons related that he grabbed the spray gun, and then hit Geeslin, knocking him to the floor. As Geeslin lay on the floor, Koons struck and kicked him. Koons stated, "in self-defense, yes, I was mad."

It was Geeslin's testimony that Koons was not the foreman assigned to supervise him and that the conversation that Koons initiated was about the color of paint being applied, not the speed of Geeslin's work. He agrees that the conversation was pacific. He states that as Koons walked away he did not point the stream of paint towards Koons, but that some of the paint from his gun was swept onto Koons' face by a large ventilation fan nearby, and that he had no intention of spraying Koons. Geeslin's account of the fight which ensued was substantially the same as Koons'.

The Commissioner denied the claim on the ground that the injury was due to the claimant's willful misconduct, and hence not compensable under W.Va.Code, 23-4-2 [1969]. ¹ The Appeal Board found that because Geeslin had intentionally sprayed Koons in the face his misconduct barred recovery.

Geeslin argues that the evidence adduced below does not support the finding of the Appeal Board. Appellee Whitehouse argues that the evidence does support this finding, and further maintains that Geeslin is barred from recovery under the common-law rule barring an aggressor from recovering under the Workmen's Compensation Act. Both the aggressor rule and the statutory defense of willful misconduct must be addressed in resolving this appeal. We turn first to the aggressor rule.

I.

According to Professor Arthur Larson, writing in his respected treatise The Law of Workmen's Compensation :

"The abolition of the aggressor defense is one of the most rapid doctrinal reversals in the volatile history of compensation law. Before 1947 the aggressor defense had the entire field to itself. Then New Hampshire, in 1947, and Massachusetts, in 1949, handed down the cogently reasoned opinions in Newell v. Moreau and Dillon's Case, flatly rejecting the entire concept of aggression as a defense. Although a few cases asserting the defense have subsequently appeared, the most impressive feature of the new trend is the number of major compensation jurisdictions that have deliberately abolished the defense in spite of earlier decisions supporting it. * * * A majority of jurisdictions--and, if comparatively recent cases are stressed, a substantial majority of jurisdictions--now reject the view that the initiation of the fight by the claimant is alone enough to deprive his ensuing injuries of the quality of 'arising out of the employment.' "

A. Larson, Law of Workmen's Compensation, Vol. 1, § 11.15(c) and (a) (1978) (footnotes omitted).

West Virginia has recognized the aggressor rule in Jackson v. State Compensation Commissioner, 127 W.Va. 59, 31 S.E.2d 848 (1944); Claytor v. Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920 (1959); and Turner v. State Compensation Commissioner, 147 W.Va. 106, 126 S.E.2d 40 (1962). In a pointed discussion, the Court in Claytor indicated that employees were not hired to engage in fights on work time and that resulting injuries, therefore, did not arise out of the employment. Because the injuries did not result from the employment, aggressors were not permitted to collect workmen's compensation.

This view represents the reluctance of courts to relinquish familiar common-law concepts. First, the rule imports the tort-based requirement of fault into the area of workmen's compensation. Second, it invokes the equitable maxim that no person shall be permitted to profit from his or her own wrong. See Hartford Accident Insurance Co. v. Cardillo, 112 F.2d 11 (C.A.D.C.1940) (Judge, later Justice, Rutledge), cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). There are several problems with the rule, and many stem from the fact that it is a judicially created bar to recovery imposed upon an entirely statutory remedial scheme.

The Michigan Supreme Court enumerated objections to the rule in Crilly v. Ballou, 353 Mich. 303, 91 N.W.2d 493 (1958). We believe each of the points noted by the Michigan Court is apt. First, the aggressor rule is not susceptible to efficient judicial administration.

In application, the rule devolves into hairsplitting distinctions between the fault of parties whose actions are not logically distinguishable as to aggressor/victim status. Illustrative in this regard is Jackson v. State Compensation Commissioner, supra, a decision denying compensation on the basis of the claimant's aggression over the dissent of Judge Lovins, which was joined by Judge Riley. Jackson's widow sought compensation for her husband's death at the hands of a fellow miner, Wilson. The factual situation was succinctly put by the Jackson court:

Jackson was a track layer, and Wilson a coal loader.... The trouble arose from a request, or demand, on the part of Wilson that Jackson should move the track to a position more convenient for Wilson in his work of loading coal. No ill feeling between the parties had theretofore existed.

127 W.Va., at 60, 31 S.E.2d, at 849.

A witness, in a statement, said that Wilson asked Jackson, "How in the hell did he expect him to load coal?" with the track so far away. Jackson's reluctance to move the track resulted in a fight. Jackson struck the first blow, and then chased Wilson for some distance, throwing his pick at him. Jackson then stopped, and Wilson struck him with a pick, killing him. The court stated that "[t]he final stage of the conflict does not present the picture of flight, or of the breaking off of the conflict, but, rather, of a 'strategic retreat', and of a voluntary standing for resumption of the contest." 127 W.Va., at 64, 31 S.E.2d, at 851. Thus, "voluntary standing" is held to be sufficient aggression to bar recovery.

The dissent noted that the court was bound to uphold the rulings of the Commissioner and the Appeal Board, holding the death compensable, unless they were clearly wrong. Focusing on the "provocative attitude" which Wilson adopted toward the decedent, the two dissenters stated that "it is a reasonable inference that such attitude led to the fight in which Jackson lost his life." They concluded that the claimant's decedent was not shown to be the aggressor on the facts of the case, and that the Appeal Board was not clearly wrong in ruling the death compensable.

The Michigan Supreme Court in Crilly v. Ballou, supra, posed these questions, derived from aggressor cases, as examples of the sophistry engendered by the rule: " 'Is name-calling aggression?' Yes, said Kimbro v. Black and White Cab Co., 50 Ga.App. 143, 177 S.E. 274. No, said York v. City of Hazard, 301 Ky. 306, 191 S.W.2d 239. How about one who 'advances upon' another, carrying a shovel? Is seizure of the shovel by the other an act of aggression? Gilyard v. O'Reilly, 4 La.App. 498, said [it] was, and compensation was awarded him who advanced." 353 Mich., at 321, 91 N.W.2d, at 503. Similar strainings may be seen in other aggressor cases. Is one who "grabs a lantern" in response to complaints about his eating on the job an aggressor? Brister v. Barton and Rich Drilling, 297 P.2d 405, 406 (Okl.1956), has so held. May verbal provocation alone relieve the operation of the rule where the worker seeking compensation made the first physical contact? Yes, according to Ford Motor Co. v. Industrial Commission, 78 Ill.2d 260, 35 Ill.Dec. 752, 399 N.E.2d 1280 (1980). The lesson to be learned from the numerous difficult cases in this area is that there is generally no easily...