Opinion
No. 40008.
March 26, 1956.
1. Workmen's Compensation — proof — acquittal in criminal case — not determinative of issue — in death benefit proceeding under Act.
Though jury had acquitted fellow employee of murder or manslaughter of employee, such acquittal would not be determinative of issue, in workmen's compensation death benefit proceeding, whether employee was engaged in willful attempt to injure or kill fellow employee at time he sustained fatal knife wound, since in trial of criminal case, law requires proof beyond a reasonable doubt, whereas in workmen's compensation proceeding issue is determined by a preponderance of evidence.
2. Workmen's Compensation — evidence — fact issue — whether employee was engaged in a willful attempt to injure or kill fellow employee at time employee received fatal wound.
Evidence presented fact issue as to whether employee was engaged in a willful attempt to injure or kill fellow employee at time employee sustained fatal stab wound.
3. Workmen's Compensation — personal difficulty between employees — death of employee did not arise in course of employment.
In proceedings under Act initiated by widow of employee who was fatally stabbed by fellow employee, in latter's home, where two had stopped for latter's lunch, after making delivery of concrete blocks for employer, since fatal altercation occurred in home of fellow employee and away from the premises of employer, there was no causal connection between work in which they had been engaged and the personal difficulty on the occasion of the knife wound inflicted by fellow employee, and facts of case warranted denial of death benefits on ground that death of employee did not arise out of and in course of employment.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Floyd Holleman, Gulfport, for appellant.
I. The death of the deceased employee arose out of and in the course of his employment by the employer. Lovett v. Buck, 260 App. Div. 824, 22 N.Y.S.2d 389; Bollard v. Engel, 254 App. Div. 162, 4 N.Y.S.2d 363, 17 N.E.2d 130; Krause v. Swartwood, 174 Minn. 147, 218 N.W. 555; Macon Dairies v. Duhart, 69 Ga. App. 91, 24 S.E.2d 732; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594; Florida Forest Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251; Harris v. Lilywhite Laundry, Inc., 178 So. 523; In re Dillon's Case, 324 Mass. 102, 85 N.E.2d 69; Vol. I, Larson's Workmen's Comp. Law, Secs. 11, 11.15D, 11.16A, 15.52, 15.53, 21.23 pp. 109-58, 216, 305.
Morse Morse, Gulfport, for appellees.
I. There is no error or interpretation of fact in the opinion of the Attorney-Referee, its affirmance by the Commission and the Circuit Court. Brown Buick Co. v. Smith's Estate (Miss.), 52 So.2d 664; Dowdle Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So.2d 277; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69; Mutual Implement Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582.
II. Deceased did not meet his death in the course of his employment. California Cas. Indemnity Exchange v. Industrial Acc. Comm., 190 Cal. 433, 213 Pa. 257; Furino v. Lansing, 293 Mich. 211, 291 N.W. 637; Goodyear Tire Rubber Co. v. Industrial Comm., 100 Utah 8, 110 P.2d 334; Lipinski v. Sutton Sales Co., 220 Mich. 647, 190 N.W. 705; McInerney v. Buffalo S.R. Corp., 225 N.Y. 130, 121 N.E. 806; Ohrmund v. Industrial Comm., 211 Wis. 153, 236 N.W. 589; Selby v. Industrial Comm., 42 N.E.2d 669; Palacono v. Garfield Mfg. Co., 9 N.J. Misc. 757; Strahlendorff v. Board of Education, 17 N.J. Misc. 51, 4 A.2d 848; Vol. I, Larson's Workmen's Comp. Law, Secs. 15.51, 15.52 p. 214.
III. The deceased's death did not arise out of his employment. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381; Persons v. Stokes, 222 Miss. 479, 76 So.2d 517; Vol. I, Larson's Workmen's Comp. Law, Sec. 11.23.
The appeal here is from a judgment of the Circuit Court of Harrison county which was rendered in favor of the appellees, Modern Builders, Inc., and Maryland Casualty Company, against the appellant, Ida Mae Chatman, a claimant for workmen's compensation benefits arising from the death of her seventeen-year-old son, Cynea Chatman, an employee of the Modern Builders, Inc. The judgment of the circuit court affirmed the decision of the Mississippi Workmen's Compensation Commission which affirmed the decision of the Attorney Referee in denying the appellant's claim on the ground that the death of the employee did not arise out of or in the course of his employment.
Cynea Chatman was killed by Charles Booth, a fellow employee. The claimant was largely dependent upon her deceased son at the time of his death. Both Cynea Chatman and Charles Booth had procured employment at the concrete block manufacturing plant of the Modern Builders, Inc., at Gulfport, during the early part of February 1954. The killing occurred on March 2, 1954 in the home of Charles Booth. The two employees had delivered two loads of concrete blocks to a customer in North Gulfport. They consumed their usual lunch hour of from twelve to one o'clock that day in delivering the blocks at the home of the customer, and while en route back to the plant of their employer, they stopped first at the home of Cynea Chatman where he got something to eat, and then deviated from their return route toward the place of business of the employer to the home of Charles Booth for him to get something to eat. While in the home of the later, the said Cynea Chatman undertook to pull the neck of Charles Booth because of the fact that he had a crick therein which was painful; and when Chatman pulled the neck of Booth, the latter slapped him and the final result was that they became engaged in a tussle during which Booth cut Chatman with a knife and from which wound Chatman died en route back to the plant of the employer but at a time when he had travelled in the truck only approximately a block from the Booth home. Booth did not accompany Chatman in the truck after he left Booth's home about 1:45 p.m., but instead went to his father's home from where his father took him to the officers to surrender.
Booth was indicted and tried for murder, but was acquitted by the jury on the theory of self-defense.
Upon the hearing before the Attorney Referee the entire transcript of the testimony at the murder trial was introduced in evidence. The claimant, Ida Mae Chatman, testified as to bad feeling having existed between Cynea Chatman and Charles Booth during most of their period of employment because of the fact that Booth had aided Cynea Chatman in getting his employment and the latter had been promoted and given an increase in wages as an operator of the concrete block machine, and the elder of the two employees was not given a promotion and increase in wages. And it is the theory of the claimant that the state of ill will existing between the two employees on account of their work had contributed to the fatal altercation and the death of Cynea Chatman. The witness, Ernestine McGee, who was the sister of Charles Booth, was the only other eyewitness to the killing. Charles lived with her in her home where the killing occurred. Ernestine admitted having told the officers that Cynea Chatman did not have a knife during the fatal encounter, but changed her testimony a time or two on the murder trial as to whether or not Cynea Chatman had a knife in his hand at the time he was cut by Booth, and also as to whether or not they were engaged in a struggle with each other in her home. Her testimony was almost equally as unsatisfactory before the Attorney Referee. Charles Booth did not testify before the Attorney Referee, but his testimony at the murder trial was introduced and it disclosed that after the accident occurred, when Cynea Chatman pulled Booth's sore neck and before they became engaged in a struggle, he had proposed to Chatman, in substance, that "since we are friends, let's go back to work," but that Chatman then undertook to cut him with a knife after Booth had proposed that they go on back to work, and that during the struggle he cut Chatman in self-defense.
(Hn 1) Of course the verdict of the jury in acquitting Booth of the charge of murder or manslaughter is not controlling on the issue of whether the employee, Chatman, was engaged in a willful attempt to injure or kill another at the time he received his knife wound, since in the trial of the criminal case the law required that the proof establish guilt beyond every reasonable doubt, whereas on the hearing before the Attorney Referee the issue was to be determined by the preponderance of the evidence.
(Hn 2) Nevertheless, in view of the foregoing summary of the testimony, we think that there was clearly presented an issue of fact, where the testimony of both Charles Booth and Ernestine McGee supported the theory that Chatman had drawn a knife before he was cut and wounded by Booth, and where, on the other hand, no knife was found on the floor in the room where the struggle occurred and the closed knife of Cynea Chatman was found in his pocket by the undertaker.
The factual situation in the case of Mutual Implement Hardware Ins. Co. et al v. Pittman, 214 Miss. 823, 59 So.2d 547, is distinguishable from the facts in the instant case. In the Pittman case the employees were on the job and about their work when the assault and battery on the claimant by a fellow employee occurred. Then, too, the Attorney Referee in the case at bar cannot be said to have been manifestly wrong in concluding that the pulling of Booth's sore neck by the employee Chatman was the sole proximate cause of the ensuing altercation; and that since the fatal altercation occurred in the home of Booth and away from the premises of the employer, there was no causal connection between the work in which they had been engaged and the personal difficulty on the occasion of the knife wound inflicted by the fellow employee. (Hn 3) We do not feel justified in upsetting the decision of the Attorney Referee, the full Commission, and the decision of the circuit court in denying compensation on the ground that the death of the employee did not arise out of and in the course of his employment under all of the facts and circumstances hereinbefore mentioned.
Affirmed.
Lee, Arrington, Ethridge, and Gillespie, JJ., concur.