Eargle v. South Carolina Elec. & Gas Co.

• Decision Date: 17 November 1944
• Docket Number: 15692.
• Parties: EARGLE v. SOUTH CAROLINA ELECTRIC & GAS CO. et al.
• Court: South Carolina Supreme Court

32 S.E.2d 240

205 S.C. 423

EARGLE v. SOUTH CAROLINA ELECTRIC & GAS CO. et al.

No. 15692.

Supreme Court of South Carolina

November 17, 1944

Henry H. Edens, of Columbia, for appellant.

Wise & Whaley, of Columbia, for respondent.

FISHBURNE Justice.

This is an appeal from a judgment of the Circuit Court reversing an award of the South Carolina Industrial Commission under the provisions of the Workmen's Compensation Act, Code 1942 § 7035-1 et seq. The hearing commissioner found that the deceased, Joe M. Eargle, met his death by "accident arising out of and in the course of his employment," and the appellant was accordingly allowed compensation for the death of her husband. On appeal the full commission affirmed this award.

There is no substantial disagreement with reference to the facts of the case. The deceased was employed by the South Carolina Electric & Gas Company as a pump room operator, at its steam plant located at Parr, on the North shore of Broad River. His home was on the South side of the river, less than a mile from the dam which impounded the waters forming a lake for the generation of electricity. The steam plant supplemented the supply of electricity generated by the water power. The lake was a half mile in width at the dam and five miles in length; the dam extended from the South side of Broad River across to the plant at Parr. Eargle lived nearer to the dam than to the town of Peak, located about two miles below the dam. At the town of Peak, a railroad trestle crossed from the South to the North side of the river.

Approximately one hundred persons living on the South side of the river worked at the defendant's plant at Parr. Fifteen or twenty of these employees, including the deceased, walked over the dam--which was much the shortest and most direct route--to reach their work; the remainder living nearer the town of Peak, used the railroad trestle to cross the river, and thence either rode or walked a distance of three miles from the North side of the river to the plant. Both of these routes were recognized by the company as ways of ingress and egress to and from the plant.

When water flowed over the dam, the employees customarily used the route by way of the town of Peak, and walked the trestle with the exception of the deceased, who with a fellow worker usually crossed the lake in a boat, unless the wind and the water were too high, in which event they walked the trestle.

The gas company was in control of and had supervision over the lake and its shores, the dam, and the water rights below the dam. Following the disastrous attack by the Japanese on Pearl Harbor, on December 7, 1941, the Company stationed guards at both ends of the dam as a protection against possible sabotage, and issued to the employees living on the South side of the river a pass which authorized the guard to allow them to use the dam to reach their work at the plant. An order was also issued prohibiting the use of the dam as a walkway when water was running over it.

The plant was located 300 to 500 yards from the Northern end of the dam.

On Christmas Eve--December 24, 1941 --the deceased was given special instructions to report for work the next day at the steam plant at eight o'clock A. M., as a member of an emergency shift, due to an unusual situation at the plant. He left his home about 7:20 o'clock in the morning, but upon reaching the dam found water running over it, which rendered it impassable. A dense fog hung over the lake and the river. Rather than take the long circuitous route by way of Peak and the railroad trestle, the deceased endeavored to cross the lake alone in his boat in order to reach his place of work. He failed to report for work that day, and after search his body and the boat were found below the dam that afternoon.

The record shows that Eargle and his co-employee had crossed over the lake in the boat the preceding morning with safety, although water was then flowing over it. The foreman of the plant testified that he knew that Eargle went back and forth across the river in a boat, at times. But no instructions were given to employees as to what route they should follow in reaching the plant, and the foreman testified that he had no objection to the deceased's crossing the lake in a boat. The superintendent of the plant testified that the way across the railroad trestle was attended by danger, and that on the morning Eargle met his death the visibility on the North shore of the river was only about fifty or seventy-five feet; and that this condition added to the risk of walking the railroad trestle.

An abundance of judicial expressions, too numerous to be included in an opinion, have been suggested in explanation of the words "arising out of and in the course of" the employment. The phraseology of the several statutes in the various states differs but little; the general purport is the same. Simple, however, as these terms appear, they have filled volumes with discussion. No Court or Commission can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the quoted phrase.

Under our statute, which is similar to others, in order to entitle a workman to an award of compensation under the Workmen's Compensation Act, his injuries must result from an accident arising out of and in the course of his employment. Gallman v. Springs Mills, 201 S.C. 257, 22 S.E.2d 715; Thompson v. J. A. Jones Const. Co., 199 S.C. 304, 19 S.E.2d 226; and see Covington v. Atlantic Coast Line R. Co., 158 S.C. 194, 155 S.E. 438; Ward v. Ocean Forest Club , 188 S.C. 233, 198 S.E. 385. The two elements must co-exist. They must be concurrent and simultaneous. One without the other will not sustain an award; yet the two are so entwined that they are usually considered together in the reported cases; and a discussion of one of them involves the other. In none of the cases cited has the Court had before it the precise question now presented.

As is generally held, the words "arising out of" refer to the origin of the cause of the accident, while the words "in the course of employment," have reference to the time, place and circumstances under which the accident occurs.

Speaking to the subject in Re Employers' Liability Assurance Corporation, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, the Supreme Judicial Court of Massachusetts says: "It (the injury) arises 'out of' the employment, when there is apparent to the rational mind upon...