Lundell v. Walker
| Decision Date | 26 October 1942 |
| Docket Number | 4-6842 |
| Citation | 165 S.W.2d 600,204 Ark. 871 |
| Parties | LUNDELL v. WALKER |
| Court | Arkansas Supreme Court |
Appeal from Phillips Circuit Court; E. M. Pipkin, Judge; affirmed.
Judgment affirmed.
Bridges Bridges & Young and Henry W. Gregory, Jr., for appellant.
K T. Sutton and John C. Sheffield, for appellee.
Arkansas Workmen's Compensation Commission ruled in favor of the claimant, widow of Henry Walker, and circuit court affirmed.
Sam Scott, Lundell Plantation foreman whose duty it was to supervise clearing new ground, shot and killed Walker about six o'clock the morning of February 10, 1941. George Brandon, superintendent for E. W. and Raymond Lundell, [1]
employed Walker in December, 1940, and assigned him to a "bulldozer" used in the work he had undertaken.
Scott's explanation was that because of Walker's inefficiency or indifference, the hourly wage of 75 cents paid during December was reduced to 50 cents January 1. Walker was dissatisfied to such an extent that it was thought best to dispense with his services and employ a substitute more agreeable and more willing. Scott wrote Brandon February 7, outlining Walker's deficiencies, and was immediately authorized to exercise the right of discharge.
Scott regularly carried a pistol because required to pass through sparsely populated areas before daylight and after dark. The shooting occurred within 30 or 40 feet of L. D. Bellah's home, near a bridge over a bayou. Scott lived three and a half miles from Bellah. Walker, who occupied an automobile house-trailer, had it stationed back of Bellah's home, on the west side of the bayou. Scott says that when he left home at five o'clock he rode to the residence of B. Dees on the east side of the bayou and tied his horse to a post. It required thirty or thirty-five minutes to make the trip. Scott passed the trailer, traversed the bayou bridge, and waited at Dees' home about five minutes before Walker appeared. He insists that Walker came '"
Continuing, Scott testified he then noticed Walker's voice was quivering; so he turned away and untied his horse, but did not mount. Walker followed and said, "If you ever 'fire' me I am going to beat you to death." Walker is then alleged to have struck Scott in the mouth, almost knocking him down. A scuffle ensued and Scott says he was knocked down:--"I then pulled my gun and told Walker to get off. When I got up I started toward the bayou, with Walker following. He was cursing and threatening to kill me. Walker obtained a stick and ran after me. He followed me across the bridge and almost caught me. At that time I turned and shot him once. [2]
I bumped into my horse on the west side of the bridge, but do not know how the animal got there. I called Bellah and told him I had shot Walker."
Mrs. L. D. Bellah testified that Walker and his wife "came over to our house" Saturday night preceding the shooting. They had been informed Scott had told Bill Dees "they" were going to kill Walker or fire him. Walker said he was not afraid, that he had confidence in Brandon.
Mrs. Bellah says she was awakened early and heard Scott ride up in front of the door. The witness had just hung some "ticking" over a window. She looked out and told her husband to get up and build a fire- -"they are waiting on you now." Just as Mrs. Bellah spoke to her husband, or about that time, she heard Walker on the bridge coming toward her house. Her testimony is that
In detailing the conversation she claimed to have heard, Mrs. Bellah said: Immediately after Walker told Scott to put his gun away, Scott fired, then rode up to the Bellah home and stated that he had shot the man. Mrs. Bellah also said that when Scott was standing by the porch his nose bled. He wiped it off with a handkerchief. Scott's face was not bloody: didn't have a scratch on it:--"Henry Walker did not raise a hand to fight him, or do anything to him."
Other testimony was given, favorable to each side. It is in evidence that Scott had a bruised face and scratches when seen shortly after the shooting. He crossed the bayou at a point below the bridge. Appellee attaches significance to the fact that Scott had been in the habit of riding a spirited black horse, but the morning Walker was killed a different mount was utilized. It was also ridden by Scott the following day. Mrs. Bellah admitted she did not tell all she knew when questioned during a preliminary hearing to determine whether Scott should be held on a criminal charge. Explanation was that she didn't want to get mixed up in the affair, and that certain direct questions were not asked.
Appellants concede that findings of facts by the compensation commission are, on appeal, given the same verity that would attach to a jury's verdict, or to facts found by the judge of the circuit court where a jury was waived. But, it is insisted "the material and pertinent facts necessary for a determination of the case are not contradicted."
We are reminded, first, that the object sought to be attained by Act 319 of 1939 was to compensate employes, (in case of injury) or dependents, (in case of death) when injury or death occurred while the employer-employe relationship...
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...with the majority view discussed above. Goldman v. Palmer & Oliver, Inc., 1950, 277 App.Div. 194, 98 N.Y.S.2d 793. In Lundell v. Walker, 1942, 204 Ark. 871, 165 S.W.2d 600, a plantation foreman fired an employee, Walker. Walker then cursed him, and Scott without reason shot and killed Walke......
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