Jackson v. State Comp. Comm'r, (No. 9595)

• Court: Supreme Court of West Virginia
• Citation: 127 W.Va. 59
• Docket Number: (No. 9595)
• Decision Date: 19 September 1944
• Parties: Lillie Mae Jackson, Widow, etc. v. State CompensationCommissioner, and United States Coal & CokeCompany, a Corporation

127 W.Va. 59

Lillie Mae Jackson, Widow, etc.
v.
State Compensation
Commissioner, and United States Coal & Coke
Company, a Corporation

(No. 9595)

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1944.
Decided September 19, 1944.

[127 W.Va. 59]

Workmen's Compensation-

The dependents of an employee whose death resulted from an injury received in an altercation with a fellow employee, while both were on duty, which arose from* a charge by the latter that he was being inconvenienced by the manner in which the deceased was performing his work, in which altercation the deceased is, by the evidence, clearly portrayed as the aggressor, cannot have an award from the Workmen's Compensation Fund.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Lillie Mae Jackson and others, claimants, to recover compensation for the death of Norman C. Jackson, employee,

[127 W.Va. 60]

opposed by the United States Coal & Coke Company, employer. From an order of the Workmen's Compensation Appeal Board, affirming an order of the State Compensation Commissioner awarding compensation, the employer appeals.

Reversed.

LovIns and Riley, Judges, dissenting.

Arthur Dayton and Charles M. Love, Jr., for appellant. Patrick J. Flanagan, for appellee.

Rose, President:

On March 29, 1943, Norman C. Jackson died from an injury inflicted by James Wilson in a fight while both were working on their jobs as employees of the United States Coal & Coke Company in a mine in McDowell County.

The employer resisted the allowance of compensation to Jackson's widow and children on the ground that Jackson was the aggressor in the altercation, and that, therefore, his death did not result from, or in the course of, his employment. On July 30, 1943, the Compensation Commissioner denied compensation to the dependents, whereupon they duly protested. A hearing was had, resulting in the statutory award to the claimants made on November 12, 1943. On appeal, the Workmen's Compensation Appeal Board, by a vote of two to one, affirmed the last order of the Compensation Commissioner, and this appeal was granted on application of the employer.

Jackson was a track layer, and Wilson a coal loader. Each had with him, on the day of the death, a helper or "buddy". 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. No witnesses were present except the two helpers, and one of these, Sidney George, was at such a distance from the fight that he is not able to give any substan-

[127 W.Va. 61]

tial testimony as to what happened. The only evidence in the case, therefore, is that of the slayer, Wilson, and that of Fuller, who was Jackson's helper. Their testimony is preserved only in their respective affidavits taken by a field agent of the Compensation Commissioner. Wilson says:

"Yes, Jackson and Fuller were laying track, I asked Jackson to bring the track on the center line, he wouldn't bring it and said he would bring it today or any other day, 'I said ah Jackson bring the track over I can't load coal with it way over there' he said 'you had better go on and stop fooling with me'. Then he picked up the ax and struck me across the head twice, it busted my cap on the left side and bent it in the top, then I run behind the danger board with him after me. He rund me around it and I come out on the other side, my pick was lying up against the rib, I grabed the pick when he struck at me again and blocked the lick, then he took and throwed the axe and hit me on my arm, then he run down the track a little piece and I followed him, then I stopped, he turned around and started to pick up another pick that was there, before he could pick it up I stuck him in the side with my pick, then Fuller stopped us."

The statement of Fuller is as follows:

"Yes, Jackson and I was laying track up to the face, the track was not on center it was to far to the right. Wilson had a long ways to pitch his coal into the car, Wilson asked him to put the track over some and Jackson told him that he wouldn't put the track over, then Wilson asked him how he expected him to load coal. Wilson was boring a hole and then Wilson straightened up and then Jackson took the ax and hit across the head and then Wilson he ran behind the danger board after Jackson had hit him twice, then Wilson came from behind the danger board and Jackson struck at him again and at that time Wilson grabbed a pick and hit at Jackson then the ax and pick clinched together and cut Jackson's finger off. Then Jackson through the ax

[127 W.Va. 62]

at Wilson and ran down the track. Wilson then ran down the track after Jackson, Jackson turned around and then Wilson struck a pick in his side. Jackson started to pick up another pick when he turned."

An affidavit was also furnished the Commissioner by a "casualty department representative" of the employer, which merely states the company's ground of objection to the claim, but there were filed with this affidavit copies of the unsworn, but signed, statements made to a deputy sheriff by Wilson, Fuller and Sidney George on the day of the homicide. These statements, if to be considered for any purpose, merely show in more detail the evidence leading up to Jackson's death, as might be expected, not wholly in agreement with the affidavits made by the same persons in regard to certain details.

At the second hearing, which resulted in the order of November 12, 1943,...