York v. City of Hazard

• Decision Date: 20 November 1945
• Citation: 191 S.W.2d 239,301 Ky. 306
• Parties: YORK et al. v. CITY OF HAZARD et al.
• Court: Kentucky Court of Appeals

191 S.W.2d 239

301 Ky. 306

YORK et al. v. CITY OF HAZARD et al.

Court of Appeals of Kentucky

November 20, 1945

Rehearing Denied Jan. 18, 1946.

Appeal from Circuit Court, Perry County; Roy Helm, Judge.

Proceeding under the Workmen's Compensation Act by Myrtle York and others for compensation for the death of Stanley York, an employee, opposed by the City of Hazard, employer, and others. From a judgment affirming a decision of the Workmen's Compensation Board dismissing the claim, the claimants appeal.

Reversed with directions.

Ward & Ward, of Hazard, for appellants.

Craft &amp Stanfill, of Hazard, for appellees.

REES Chief Justice.

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 Work 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 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 were 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 nothing in his hand, had just stepped on the pavement, and was 'looking off' when Eldridge hit him with the shovel. Eldridge was indicated and tried for murder, and was convicted of manslaughter and sentenced to five years' imprisonment. His deposition was taken in the prison at LaGrange. He testified that he and York had been working together for the City for three or four months, and had never had trouble of any kind prior to the occasion in question. When the truck stopped he jumped off with a shovel in his hand and reached back to get another shovel, and as he drew it to him it tipped York under the chin. According to the witness York became enraged, cursed him, called him a vile name, and attacked him with a shovel. He told York that he did not intend to hit him and that it was an accident, but York continued to follow him with a shovel and struck at him and he hit York in self-defense.

The injury which caused York's death was received in the course of his employment, and the only question to be determined is: Did it arise out of his employment? In Kentucky Flourspar Co. v. Wolford, 263 Ky. 471, 92 S.W.2d 753, 754, this court, after citing several cases, said:

'The rule deducible from these and other cases that might be cited is that compensation will be granted for injuries due to an assault by a fellow employee where they are fairly traceable to an incident of the employment, and will be denied where they are the result of personal grievances unconnected in any way with the employment.'

In Schultz v. Chevrolet Motor Co., 256 Mich. 393, 239 N.W 894, 895, Schultz and another employee of the motor company were engaged in unloading bundles from a truck, and the fellow employee became enraged because he was struck by a bundle tossed by Schultz and struck Schultz with a...