Allsep v. Daniel Const. Co.

• Decision Date: 30 January 1950
• Docket Number: 16311.
• Citation: 57 S.E.2d 427,216 S.C. 268
• Parties: ALLSEP v. DANIEL CONST. CO. et al.
• Court: South Carolina Supreme Court

57 S.E.2d 427

216 S.C. 268

ALLSEP v. DANIEL CONST. CO. et al.

No. 16311.

Supreme Court of South Carolina.

January 30, 1950

J. Wiley Brown, Greenville, W. K. Charles, Greenwood for appellant.

Haynsworth & Haynsworth, Greenville, for respondents.

STUKES, Justice.

The Industrial Commission made an award of workmen's compensation to appellant which was reversed by the lower court, whence this appeal. Claimant had been working two weeks as a laborer for Daniel Construction Company, which is a building contractor. It was erecting houses at a cotton mill and claimant and three other employee were moving sheetrock by truck from a warehouse to the job. In the unloading process he and one other stood on the truck, toward the cab, and pushed the pieces of material to the rear of the truck where the two other members of the crew received and took them to be piled near-by. While thus standing on the truck claimant was suddenly and without warning seized by one of his legs by a fellow crew member who was on the ground, and pulled off the truck. As he fell he grabbed the other employee who thereby fell on claimant and the latter's right arm was broken in several places and was found by the Commission to be permanently functionally impaired.

Claimant and the other employee had worked together only a couple of days and were barely acquainted. The latter was known to claimant only by the name of 'Red'; he did not testify. On the day before the accident he invited claimant to have lunch with him, which claimant declined because he had brought his lunch. Only claimant testified concerning the circumstances of the accident and he denied any other communication with Red, any difficulty between them or any horseplay except this incident. The record indicates that the employer offered no evidence.

The Commission found that the injury resulted from accident which arose out of the employment. On this point the Court held that the accident was unconnected with the work and, principally upon the authority of Gory v. Monarch Mills, 208 S.C. 86 37 S.E.2d 291, 293, decided that the injury was non-compensable. Upon consideration we conclude to the contrary. Gory's case is not controlling. It is distinguishable upon the facts as is seen from the following excerpt from the judgment in that case: 'At the time of respondent's injury, he had stopped shoveling (the work he was employed to do) for the purpose of procuring a cigaret for his personal pleasure from Davis who was passing near where he was working. Davis had no connection with the labor at the sand pile, but as aforesaid was merely passing by in connection with work he had been assigned to perform.' Here, on the contrary, claimant was immediately engaged in the performance of his duties and had not departed from them in the slightest when the apparently playful push or pull of his fellow employee resulted in the fall and injury.

Rather, the reasoning employed in Eargle v. South Carolina Electric & Gas. Co., 205 S.C. 423, 32 S.E.2d 240, 242, is dispositive of this case. There the following was quoted with approval from a Massachusetts opinion [In re Employers' Liability Assur. Corp., 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306]: 'Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'

Moreover, if the Gory case be considered one of horseplay, it appears that he was the aggressor or initiator which is often an important distinction as will be seen upon investigation of the many decisions of other courts which have had to deal with the problem. The annotations hereinafter cited contain the bulk of them.

It is common knowledge from universal experience that when men are gathered together at work they are given to pranks which sometimes result in injuries, as here; and it is one of the anticipated risks of employment. When injury and loss of wages result the workman or his dependent should be compensated in conformity with the well-known purpose of the compensation act to transfer in part the financial burden of disability to the employer. In return he is relieved of liability for damages in tort actions. An early leading case to the point is Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522, in which Justice Cardozo wrote the since widely quoted opinion. He said in part, as follows: 'The claimant while engaged in the performance of his duties in the employer's factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horseplay, and had no knowledge of it till injured. * * * That it arose 'in the course of employment' is unquestioned. That it arose 'out of' employment, we now hold. The claimant's presence in the factory in association with other workmen involved exposure to the risk of injury from the careless acts of those about him. * * * Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. * * * For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor. The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. * * * The risks of injury incurred in the crowded...