Bean v. Piedmont Interstate Fair Association, Civ. A. No. 1268.

• Decision Date: 09 October 1954
• Docket Number: Civ. A. No. 1268.
• Citation: 124 F. Supp. 385
• Court: U.S. District Court — District of South Carolina
• Parties: John BEAN, Plaintiff, v. PIEDMONT INTERSTATE FAIR ASSOCIATION, Defendant. PIEDMONT INTERSTATE FAIR ASSOCIATION, Third Party Plaintiff, v. FIREWORKS CORPORATION OF AMERICA, a corporation, Jack Kochman and Jack Kochman, Inc., a corporation, Third Parties Defendants.

124 F. Supp. 385

John BEAN, Plaintiff, v. PIEDMONT INTERSTATE FAIR ASSOCIATION, Defendant.

PIEDMONT INTERSTATE FAIR ASSOCIATION, Third Party Plaintiff, v. FIREWORKS CORPORATION OF AMERICA, a corporation, Jack Kochman and Jack Kochman, Inc., a corporation, Third Parties Defendants.

Civ. A. No. 1268.

United States District Court W. D. South Carolina, Spartanburg Division.

October 9, 1954.

E. W. Johnson, John C. Williams, Warren P. Justice, Spartanburg, S. C., for plaintiff.

T. B. Butler, Spartanburg, S. C., for defendant and third party plaintiff, Piedmont Interstate Fair Association.

Perrin, Ward & Perrin, Spartanburg, S. C., for third party defendant, Fireworks Corp. of America.

Carlisle, Brown & Carlisle, Spartanburg, S. C., for third party defendants, Jack Kochman, Jack Kochman, Inc.

WYCHE, Chief Judge.

The above case is now before me (1) upon motion of the plaintiff to strike from the answer of the defendant Piedmont Interstate Fair Association the second defense and the third defense on the ground that the defendant Fair Association being neither an eleemosynary corporation nor exempted under the Workmen's Compensation Act and not having elected to comply does not have available to it the defenses as set out in the second and third defenses in its answer (the second and third defenses of the defendant Piedmont Interstate Fair Association's answer allege contributory negligence and assumption of risk, respectively); (2) upon motion of the defendant Piedmont Interstate Fair Association to dismiss the cause of action upon the ground that the defendant Piedmont Interstate Fair Association is an eleemosynary corporation and as such is not liable for its torts, and upon the further ground that, unless defendant be an exempt employer under the provisions of subdivision (8) of Section 72-107 of the 1952 Code of Laws of South Carolina, the rights, liabilities and remedies provided in the South Carolina Workmen's Compensation Act and the jurisdiction of the South Carolina Industrial Commission thereunder, are exclusive, and that any right of the plaintiff and any liability of the defendant in that event is limited to the amounts and benefits payable under the South Carolina Workmen's Compensation Act, and the jurisdiction of the South Carolina Industrial Commission is exclusive with respect to plaintiff's injuries and that this Court is without jurisdiction of this action.

The defendant Piedmont Interstate Fair Association has amended its answer to allege that "Without waiving, but on the contrary expressly reserving, its rights under its other defenses in this Answer, and while alleging that it is an eleemosynary, charitable or other similar type of corporation or association under the laws of the State of South Carolina, and as such not liable to the Plaintiff at common law, under the South Carolina Workmen's Compensation Act, or otherwise, Defendant nevertheless alleges that, unless it be an exempt employer under the provisions of subdivision (8) of Section 72-107 of the 1952 Code of Laws of South Carolina, the rights, liabilities and remedies provided in the South Carolina Workmen's Compensation Act, 1952 Code of Laws of South Carolina, Section 72-1 et sequitur, and the jurisdiction of the South Carolina Industrial Commission thereunder, are exclusive and that any right of the Plaintiff and any liability of the Defendant in that event would be limited to the amounts and benefits payable under the South Carolina Workmen's Compensation Act, and the jurisdiction of the South Carolina Industrial Commission (is) exclusive with respect to Plaintiff's injuries, and this Court is without jurisdiction of the subject matter of this action."

It is my opinion that the defendant Piedmont Interstate Fair Association is an eleemosynary corporation chartered under the statutory law of South Carolina for chartering charitable and eleemosynary corporations, pursuant to Chapter 12 of the Code, § 12-751 et seq., and as such is not liable for its torts. The defendant Piedmont Interstate Fair Association's motion to dismiss upon this ground should be granted, and

It Is So Ordered.

With reference to the second ground of the defendant Piedmont Interstate Fair Association's motion to dismiss, it appears that under the South Carolina Workmen's Compensation Act, 1952 Code of Laws, Section 72-1 et seq., there are two classes of employers: (1) Those who are automatically under the Act and (2) those who are exempt from its provisions and, therefore, as to whom the Act never comes into effect. If an employer has as many as fifteen employees regularly employed, Section 72-12 and Section 72-13, and is not exempt, Section 72-107, the Act is presumed to apply, Section 72-110. When the Act is automatically applicable to an employer, no affirmative action on anybody's part is required in order to make the Compensation Act applicable, but such an employer may reject the Act, by affirmative notice to that effect, as provided by Sections 72-101 and 72-105. Unless such an automatically covered employer gives this notice, and none such was given in this case, the Act is applicable. No affirmative step is required by an automatically covered employer to bring it under the Act. If an automatically covered employer rejects the Act by this affirmative action, then that employer loses the right to common law defenses of contributory negligence, assumption of risk...