York v. City of Hazard

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Chief Justice Rees
• Citation: 301 Ky. 306
• Decision Date: 20 November 1945
• Parties: York et al. v. City of Hazard et al.

301 Ky. 306 York et al.
v.
City of Hazard et al. Court of Appeals of Kentucky. November 20, 1945.

1. Workmen's Compensation. — Workman's compensation will be granted for injuries due to an assault by a fellow employee where they are fairly traceable to an incident of employment, and will be denied where they are result of personal grievances unconnected with the employment. KRS 342.001 et seq.

2. Workmen's Compensation. — That employee said something which fellow employee considered insulting or abusive did not justify

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assault and did not make employee the aggressor or constitute such provocation as to deprive his dependents of right to compensation for his death which was caused by the assault. KRS 342.001 et seq.

3. Workmen's Compensation. — Claimants seeking compensation for death of employee have burden of proving that employee came to his death as result of an accident arising out of and in course of employment, but direct evidence is not necessary and it is sufficient if evidence is such as will reasonably sustain an inference or raise a presumption to support it. KRS 342.001 et seq.

4. Workmen's Compensation. — In proceeding for compensation for death of street cleaning crew member who was assaulted and killed by a fellow employee, the only reasonable inference from evidence was that assault resulted from an altercation connected with or pertaining to employment and evidence did not sustain judgment denying compensation. KRS 342.001 et seq.

Appeal from Perry Circuit Court.

Ward & Ward for appellants.

Craft & Stanfill for appellees.

Before Roy Helm, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE REES.

Reversing.

Stanley York, an employee of the City of Hazard, was assaulted and killed by a fellow employee on February 26, 1944. He left a widow and two infant children. On March 30, 1944, the widow, for herself and children, made application to the Workmen's Compensation Board for an award under the Workmen's Compensation Act, KRS 342.001 et seq., and after proof was taken a referee of the board dismissed the application for adjustment of claim on the ground that York's death was not caused by an injury arising out of his employment. On full board review the finding of the referee was approved, and the claim was dismissed. A petition for review was filed in the Perry circuit court, where the award of the board was affirmed. The sole question presented by this appeal is whether or not the injury which caused the death of York arose out of his employment.

Stanley York and Charlie Eldridge had been members of the street cleaning crew of the City of Hazard for several months prior to the day on which York was killed. On the day in question York and Eldridge, with three other employees of the City, were engaged in cleaning the streets under the direction of Jason Spicer, street supervisor. A truck was being used to haul away

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the dirt and other material collected from the streets. Each of the workmen was using a pick and shovel. The crew began work at 7 o'clock in the morning and between 10 and 11 o'clock the truck was driven to a point in Walkertown, where it was to be unloaded. Whether Walkertown is within the corporate limits of Hazard or is a suburb does not appear. Stanley York, Charlie Eldridge, and J.M. Hays rode on the bed of the truck and Jason Spicer and Howard Stacy rode in the cab with Lewis Tyree, the driver. The killing occurred immediately after the truck stopped at the place where it was to be unloaded. Spicer testified that as he got out of the cab Howard Stacy said: "Some of them are going to fight." The witness stepped from in front of the truck and saw Eldridge strike York on the head with a shovel. They were behind the truck on the edge of the pavement. Eldridge got off the truck with a shovel in his hand, but York had nothing in his hand when he was struck. Spicer took York to the hospital where he died without regaining consciousness. Spicer stated that York and Eldridge had been working in his crew for about three weeks, and as far as he knew they had never quarreled. Just before his attention was called to the trouble, he heard someone say: "You can't talk that way to me." J.M. Hays testified that when the truck stopped he got off on the righthand side and York and Eldridge got off on the lefthand side. He never heard a word until York walked around the truck and Eldridge walked out a little way and said: "You can't talk to me that way." York was standing on the sidewalk and Eldridge raised the shovel and hit him. They had no argument while they were in the truck, and apparently had been on friendly terms during the day. York had...