dissenting:
I find myself in disagreement with the other members of this Court in the decision to reverse the unanimous decision of the Workmen’s Compensation Appeal Board, which affirmed the State Compensation Commissioner, in awarding compensation benefits to the appellee and her children. It is my view of the decisions of this Court that no precedent has been established that requires such a decision upon the facts in this record. It is true that in Archibald v. State Compensation Commissioner, 77 W. Va. 448, 87 S. E. 791, there is some dicta by Judge Poffenbarger to the effect that an injury intentionally inflicted upon one workman by another by a blow from a piece of iron thrown in anger, or by assault and battery, •is of the kind that is not compensable. No one was injured in that case by a blow from a piece of iron, or by ássault and battery, and the claim was held compensable.
In Crowder v. State Compensation Commissioner, 115 W. Va. 12, 174 S. E. 480, a service station attendant was killed, by a man who lived near the station because of the alleged negligence of the employee in not keeping a toilet door closed. This Court held the claim of the decedent’s petitioner compensable.
Upon my view of the evidence in this case, the decedent’s death resulted not from any purely personal dispute between the deceased and Johnson, but from an attempt by the deceased and the members of his crew to prove to Johnson a newcomer to that crew, that they were better workers than Johnson and the crew with which he had formerly been working.
• In 1. Larson’s Workmen’s Compensation Law, §11, Assaults, Page 109, many cases are collected and cited supporting the general statement under this title that: “Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work. Most jurisdictions deny compensation if the claimant himself was the aggressor, *109although a few have rejected this defense if the employment in fact caused the fight to break out. * * *” See also: 99 C.J.S., Workmen’s Compensation, §226; 58 Am. Jur., Workmen’s Compensation, §266. In Jackson v. Compensation Commissioner, 127 W. Va. 59, 31 S. E. 2d. 848, decedent was killed in an altercation with a co-employee arising out of decedent’s refusal to move a track closer to such co-employee’s working place. Compensation was denied, two Judges dissenting, solely on the ground that the evidence showed decedent to be the aggressor.
I would not accept the view that a dispute between fellow employees is purely personal, and has no relationship to the employment where, as here, it results from a spirit of competition between employees which enhanced the productivity of the plant in which they were employed, and where the injured or killed employee was not the aggressor. Reference is here made to the cases cited in Larson’s Workmen’s Compensation Law, C.J.S. and American Jurisprudence without any attempt to analyze them in detail. Suffice to say that under the great weight of authority in this country, this claim should be held compensable. That is not to say that I approve of all of the decisions in these annotations, nor even all that are cited by the Workmen’s Compensation Appeal Board in its opinion, but I do agree with the result arrived at by the Board. Under the statutes, this Court must give the same weight to the findings of fact by the Board as it gives to that of a trial chancellor, and it cannot be reversed unless it is found that the Board is clearly wrong. I would affirm the decision of the Board in holding the claim compensable.