Carter v. Penney Tire & Recapping Co.

• Decision Date: 26 October 1973
• Docket Number: No. 19708,19708
• Citation: Carter v. Penney Tire & Recapping Co., 200 S.E.2d 64, 261 S.C. 341 (S.C. 1973)
• Court: South Carolina Supreme Court
• Parties: George G. CARTER, Respondent, v. PENNEY TIRE AND RECAPPING COMPANY and Potomac Insurance Company, Appellants.

Page 64

200 S.E.2d 64

261 S.C. 341

George G. CARTER, Respondent, v. PENNEY TIRE AND RECAPPING COMPANY and Potomac Insurance Company, Appellants.

No. 19708.

Supreme Court of South Carolina.

Oct. 26, 1973.

Lester E. Stringer, Charleston, for appellants.

Murdaugh, Eltzroth & Peters, Hampton, and Wendell O. Adams, Walterboro, for respondent.

BUSSEY, Justice:

This is an appeal by the employer-carrier in a Workmen's Compensation case from an order of the circuit court affirming an award of compensation to the claimant Carter. The sole issue on appeal is whether claimant's injury 'arose out of' his employment, it being conceded that he was injured while in the course thereof. There is little, if any, dispute as to the facts or as to the inferences reasonably deducible therefrom.

On January 29, 1969, Carter was shot with a pistol by one Franklin Crosby. At the time Carter had come home on leave from the U.S. Army and was at work as an employee of Penney Tire and Recapping Company. Carter and two others were engaged in putting a roof upon a shed used for the storage of tires. Penney's place of business is located on Highway 15, near Walterboro, South Carolina. A circular driveway from Highway 15 goes completely around and passes to the rear of the Penney business establishment. To the rear of such establishment, across the driveway, is an automobile repair garage operated by one Williams. Approximately one week before the date of the assault, Carter and a co-employee, Hiers, had some words or a quarrel with Crosby at a drive-in restaurant near Walterboro, arising out of a previous difficulty between Crosby and Hiers, but no fight occurred on this occasion. On the morning of the date of the assault, Crosby had occasion to go to the automobile garage to the rear of the Penney establishment and, seeing Carter and Hiers upon the roof of the Penney shed, made threatening gestures. Later, while Carter and Hiers were at lunch, Crosby returned to the vicinity and sent by another threats to Carter and Hiers. Before returning to his work on the roof after lunch, Carter reported such threatened trouble with Crosby to his employer, Mr. Penney, who assured Carter that he would be protected and instructed him to return to the roof and go ahead with his work. Shortly thereafter, Crosby returned to the vicinity and upon observing his approach, Carter came down the ladder from the roof for the purpose of advising Mr. Penney of Crosby's return. As he turned away from the ladder, he was shot in the forehead and seriously injured.

Included in the findings of fact by the single Commissioner, affirmed by the full Commission and not here challenged, was the following:

'That the employer had complete knowledge of impending danger to the employee from an outside force; and that full protection was guaranteed employee by employer.'

Both employer and claimant agree that a quotation from Mazursky v. Industrial Commission, 364 Ill. 445, 449, 4 N.E.2d 823, 825, contained in the opinion of this Court in Bridges v. Elite, Inc., 212 S.C. 514, 48 S.E.2d 497, 499, is a good statement of the rule as to when an injury may be said to arise out of the employment in Workmen's Compensation cases. The quotation is as follows:

'It arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. 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.'

While there is agreement as to the proper rule, as usual, the difficulty arises in the application of the rule to the facts of a particular case. The appellants strongly rely on Bridges v. Elite, Inc., supra, but we deem that case to be factually distinguishable from the instant case. There the employer had no knowledge of the seriousness of the threats or danger to the employee, a fact pointed out in the opinion. In addition, the evidence showed that the assailant was seeking out the employee and would have killed her wherever he found her. Professor Larson in Sec. 11.21 of his work on Workmen's Compensation Law refers to the Bridges case in the following very apt language:

'In a South Carolina case the deceased employee was shot by her lover in a sort of Frankie-and-Johnnie tragedy. The inevitability of the murder without regard to the employment is shown by the assailant's attempt earlier to find her at her boarding house, after having sent word by a friend that he was going to 'put five 38's in her,' a promise which he carried out with perfect accuracy as to both number and caliber of the shots.'

In the instant case it is acknowledged that the employer had full knowledge of the impending danger in the face of which he required the employee to return to work, assuring him of full protection from such danger by the employer. No facts or circumstances are in evidence in the present case pointing to the inevitability of the assault without regard to the employment and the place and circumstances thereof. There is no evidence of any long standing difficulty between Carter and Crosby, or that Crosby sought or intended to pursue Carter or the difficulty had he not, perchance, happened to see him working on the roof in the course of his employment. At least a reasonable inference is that but for this chance sighting, Carter might well never again have encountered Crosby, let alone been harmed by him.

The appellants cite and rely on various other cases wherein compensation has been denied because the assaults have been held not to have arisen out of the...