Jackson v. State Compensation Commissioner ( 1944 )

I am unable to agree with the result reached in this case. The statement of law in the syllabus is sound, but, as I evaluate the record, it is not clearly shown that the deceased was the aggressor.

It is true that acceptance and literal application of the testimony of Wilson and Fuller tend to show that the deceased actually struck the first blow, but the credence to be given that testimony is seriously affected by the inconsistencies and contradictions pointed out in the majority opinion. It is significant that four and a half feet separated the deceased and Wilson at the time the quarrel started, and, according to the testimony of Fuller, the deceased took no steps toward Wilson. Nevertheless Fuller stated that deceased struck Wilson with an axe. Furthermore, the undisputed fact that Wilson pleaded guilty to voluntary manslaughter casts doubt on the holding that the deceased was the aggressor. Considering Wilson's action in entering such plea in the light most favorable to him, certainly he thereby admitted that he was at fault in some degree. As tending to support the findings of the commissioner and the board, we have the undisputed fact that a remark by Wilson led to the quarrel and subsequent fight and killing. Fuller, the helper of the deceased, made a signed but unsworn statement, which appears in the record, to the effect that when Jackson refused to place the track as Wilson requested, Wilson said, "how the hell did he expect him to load coal?" Fuller made an affidavit before an inspector of the Workmen's Compensation Department, in which he stated that Wilson used substantially the same language to Jackson but omitted that Wilson used the expletive "hell".

It is clear from his language that Wilson adopted a provocative attitude toward Jackson and it is a reasonable inference that such attitude led to the fight in which Jackson lost his life. Wilson was angered by the manner in which Jackson was performing the duties of his employment, expressed that anger, and thus affronted Jackson. I do not think Jackson was clearly the aggressor nor that he was engaged in such an unlawful act as to deprive his dependents of compensation benefits. His fatal injury undoubtedly occurred in the course of his employment, and there is sufficient evidence to sustain a conclusion that it resulted therefrom. Crowder v.Compensation Commissioner, 115 W. Va. 12, 174 S.E. 480.

A finding of fact by the Compensation Commissioner and the Appeal Board should not be set aside unless clearly wrong.Burgess v. Compensation Commissioner, 121 W. Va. 571,5 S.E.2d 804. Nor should a finding of fact by the commissioner which is affirmed by the board be set aside unless such finding is unreasonable and contrary to a clear preponderance of the evidence. Manning v. Compensation Commissioner, 124 W. Va. 620,22 S.E.2d 299; Stevely v. Compensation Commissioner,125 W. Va. 308, 24 S.E.2d 95; Pannell v. CompensationCommissioner, 126 W. Va. 725, 30 S.E.2d 129. A compensation claim is treated with liberality on appeal and reasonable inferences in support of such claim may be drawn from other established facts. Pannell v. Commissioner, supra. Applying the principles above set forth and giving the findings of the Commissioner and the Appeal Board their legal effect, I do not think the testimony of Wilson and Fuller is a substantial basis on which to set aside the finding of the commissioner and the board. It is to be noted that the only eyewitnesses to the events of the quarrel and subsequent killing are Fuller and Wilson, and, as hereinbefore indicated, their testimony is of such doubtful quality that a finding of fact by the commissioner and the board contrary thereto should not be set aside.

In accord with the established legal principles hereinabove stated, I would affirm the finding made by the State Compensation Commissioner and the Workmen's Compensation Appeal Board.

I am authorized to say that Judge Riley joins in this dissent.