Jolly v. Atlantic Greyhound Corp.

• Decision Date: 13 August 1945
• Docket Number: 15766.
• Parties: JOLLY v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: South Carolina Supreme Court

35 S.E.2d 42

207 S.C. 1

JOLLY v. ATLANTIC GREYHOUND CORPORATION et al.

No. 15766.

Supreme Court of South Carolina

August 13, 1945

Sloan & Sloan, of Columbia, for appellants.

J Carl Kearse and B. D. Carter, both of Bamberg, for respondent.

STUKES Justice.

This is an appeal from an award of workman's compensation which was made by the Industrial Commission and affirmed on appeal to the Circuit Court, except that the amount for disfigurement was reduced by the Court from $1500 to $800 by means of an order nisi, to which the claimant assented. (The decision was before publication of our opinion in Schwartz v. Mt. Vernon-Woodbury Mills, Inc., 206 S.C. 227, 33 S.E.2d 517.)

The following facts, in substance, were found by the commission upon competent evidence and affirmed by the Court. Claimant was a filling station attendant at the rural establishment of one Porter, in whose regular employ he was. The filling station feature was incidental to the business which included a store, a cafe and beds for lodging, the latter chiefly patronized by sportsmen visiting the nearby Edisto River for fishing. There was no automobile service offered or available at the station beyond the sale of gasoline and oil, free air and water; no motor or even tire repairs or changes were made. Claimant worked generally about the entire place, in the course of which he served automobiles with fuel and lubricants, water and air.

A bus line of Atlantic Greyhound, one of the appellants, passed over the paved highway to which the service station was adjacent, and on the occasion which gave rise to this controversy a loaded passenger bus in sole charge of the corporation's driver, one Garner, approached the station rolling, with motor dead, and stopped at the gasoline pump. Never before had this been done, and the Greyhound Corporation had never obtained supplies or any service from Porter or claimant, his employee. Garner requested and obtained from Porter some gasoline in a quart can which he picked up empty at the front of the station, raised the hood of the engine and poured some of it in the carbureter after removing some part from the latter. Then he attempted to start the motor by operation of the selfstarter from the driver's seat, but failed. Thereupon he requested Jolly, the claimant and respondent, to pour gasoline in the carbureter as he, the driver, operated the starter from inside the bus. Jolly is small and could not reach the necessary position without climbing on a fender which he did, and leaned over the motor and poured in gasoline as directed. There was some indication that the motor would start and Garner directed Jolly to continue to pour as he (Garner) operated the starter. When this was done there was an explosion in the motor, apparently what is commonly called 'backfiring', and flames shot out and badly injured Jolly about the arms, upper body, head and face. He was immediately taken to a hospital where he was a patient for several weeks and afterward for several more under the care of a physician at his mother's home. He was severely injured about the mouth, nose and ears, and flames and fumes entered his nostrils and injured them.

Several physicians testified from which it was found that he suffered mildly from asthma before the accident, which condition was aggravated as a result of it and he is since subject to more severe and longer-lasting attacks which seriously interfere with such employment as he has undertaken. He attempted to return to his former work, but was unable to continue; tried employment at another filling station with similar failure and at the time of the hearing before the Commissioner he had been working about three weeks at a cleaning establishment for which he collected and delivered clothes upon a commission. He is permanently scarred from the burns although the doctors testified that the wounds healed well with less permanent signs than they had feared. The burns were described as 'third degree', the medical term signifying the worst of burns, those extending through the skin and into the tissues of the body.

The important question in the controversy is whether Jolly was an employee of the Atlantic Greyhound Corporation, within the intendment of the compensation law, at the time of his accidental injury. The hearing commissioner, the majority of the industrial commission and the Circuit Court have so held. Appellants are the alleged employer and its compensation insurance carrier. In the statement of issues at the outset of their brief they, of course, make this question, and further contend that if an employee, Jolly was a casual one to whom the compensation law does not apply. Other questions are stated by appellants but, in the view we take, they need not be considered. Indeed, for the purpose of our discussion and decision, it may be assumed (and not decided) that Jolly was at the time of his injury an employee of Greyhound for, if so, he was undoubtedly a casual employee to whom the compensation law is not applicable,--this by its own plain language.

Appellants point out the following apparent inconsistency in our compensation law. In the section containing definitions, 1942 Code, § 7035-2, the following occurs:

'The term 'employee' means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.'

Section 7035-16 provides as follows: 'This article (the compensation act) shall not apply to casual employees, farm laborers, federal employees in South Carolina and domestic servants * * *.'

It is urged by appellants that the quoted provisions are inconsistent, the first exempting as casuals only those not so employed in the course of the trade, business, etc., of his employer; whereas the subsequent provision exempts all casual employees. This seeming conflict was adverted to in the case of Ward v. Ocean Forest Club, 188 S.C. 233, 198 S.E. 385, in which it was mentioned as a discrepancy. However, it was not necessary to solve or even discuss the problem for the employee there was clearly not a casual one, and it was so decided. The authorities cited upon the latter point are interesting and they are applicable to this case to demonstrate that if Jolly was an employee of Greyhound, he was most certainly a casual employee. The plaintiff, Ward, in the cited case was not a casual employee and, therefore, was not confronted with the bar of section 7035-2 or of section 7035-16. It is noted that these sections of the act are there referred to as 2 and 14, that being before the codification of them in the Code of 1942; they are the same.)

It is now determined upon close analysis that there is not the conflict between sections 7035-2 and 7035-16 which appears upon first blush. 7035-2 is the definition section of the act, as stated above, wherein the term 'employee', as used in the act, is defined and the definition thereafter qualified and limited, plainly by the use of the following words: 'but excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.' Thus one such is not an employee of his employer, for the purposes of the act; that is, he is not an employee for such purpose if his employment is both casual and not in the course, etc., of his employer's occupation.

On the contrary, there may be an employee, within this definition and the other terms of the act, whose employment is casual but in the course of the trade, etc., of his employer's occupation. The latter qualification makes him an employee, under the definition. But he is expressly exempted from the terms of the act by section 7035-16 which provides beyond peradventure of a doubt that the law does not apply to casual employees.

The foregoing is a simple analysis, but we think it an obvious and accurate one, of the relevant provisions of our compensation law and it constitutes a construction that harmonizes these sections, which appear upon first examination to conflict, and is in accord with the elementary rule of construction that all parts and provisions of a legislative enactment must be given effect, if reasonably and logically possible; and in this case there is no difficulty in reaching the conclusion stated. Indeed, none other is apparent and it is plain that the Court cannot properly read out of the law or ignore section 7035-16, which we repeat again for emphasis: 'This article (act) shall not apply to casual employees * * *.'

If it were impossible to reconcile the seeming conflict between sections 7035-2 and 7035-16, as is done above, and which we think sound, there is another rule of statutory construction which would bring about the same result insofar as this controversy is concerned. The 'last legislative expression' rule is referred to and is well illustrated by our recent case of Feldman v. Tax Commission, 203 S.C. 49, 26 S.E.2d 22, where conflicts were found in the liquor laws of the State and it was impossible to harmonize them. It was held in accord with the cited rule, upon stated authorities, that the subsequent provision of the statute should prevail over a prior one, the later being the last in point of time or order of arrangement. Thus in this case the exemption of casual employees from the application of the compensation law would prevail over any inconsistency in the prior definition of the term 'employee' contained in the preceding section, 7035-2. In other words, if there were repugnancy between the two statutory...