Opinion
November 25, 1942.
Appeal from State Industrial Board.
Present — Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ.
The employer was engaged in the laundry business and the decedent was employed as a truck driver. The employer and the insurance carrier contend that the award is improper because the injuries resulting in the death of the decedent did not arise out of and in the course of decedent's employment. On January 3, 1941, while engaged in the regular course of his employment and while lowering a tailboard of the employer's truck, in front of the employer's premises, so that the load of laundry could be taken into the employer's laundry, a fellow employee without provocation assaulted the employee, resulting in the injuries which caused his death. A fellow employee named Branco, employed as a watchman, was convicted of the crime of murder in the second degree and received a sentence of twenty years to life in Sing Sing Prison. The shooting took place during the hours of employment of both decedent and Branco. Branco claimed decedent had assaulted him just previous to the shooting; the testimony being taken at Sing Sing Prison. The testimony of decedent's helper who witnessed the assault, establishes that the attack was without provocation on his part and while he was engaged in his regular work, because of jealous motives arising out of employer relations. A question of fact was involved which the State Industrial Board has decided in favor of the claimant. Award unanimously affirmed with costs to the State Industrial Board.