Jordan v. Dixie Chevrolet

• Decision Date: 26 October 1950
• Docket Number: 16419.
• Parties: JORDAN v. DIXIE CHEVROLET, Inc., et a.
• Court: South Carolina Supreme Court

61 S.E.2d 654

218 S.C. 73

JORDAN v. DIXIE CHEVROLET, Inc., et a.

No. 16419.

Supreme Court of South Carolina.

October 26, 1950

J. W. Wallace, Florence, Samuel Want, Sam Rogol, and LeRoy M. Want, all of Darlington, for appellant.

Willcox, Hardee, Houck & Palmer, Florence, for respondents.

TAYLOR, Justice.

This appeal comes to this Court from an order of the Resident Judge of the Twelfth Judicial Circuit, dated February 9, 1950, affirming an opinion and award of the South Carolina Industrial Commission, dated March 7, 1949, wherein claimant was denied compensation for injuries sustained by him which were alleged to have arisen out of and in the course of his employment.

From this order exceptions were taken which present the question of whether or not the injuries received by appellant were the result of an accident which arose out of and in the course of his employment, appellant contending that under the facts, as found by the Industrial Commission, claimant is entitled to compensation as a matter of law.

The testimony reveals that three persons were employed by respondent in its paint and body repair shop at the time in question and for several months prior thereto. The foreman having been discharged some time prior to the accident, an arrangement had been entered into whereby the three employees were to work together, with Mr. W. O. Turner being in charge of repair orders and parceling out the work equally so that one would not be called upon to do more than his share of the work. This arrangement was to be in force unless the manager should call upon one of the employees to do some specific job.

A Florence, South Carolina, Police car was brought in some two or three days prior to the accident and turned over to Mr. Turner by Mr Smith, the Manager, with instructions to weld the holes in the body where the radio aerial had been previously installed and had at that time been removed, and to have the police signs removed from the doors. Turner assigned this work to one of the employees named B. G. Game, who was engaged in this operation at the time claimant was injured.

On June 3, 1948 the day in question, claimant, having no work assigned to him by his employer, had been idle all day and at about 4 p. m. was sitting in the front seat of the car on which Game was working, when he took from the glove compartment a tear gas bomb. Not knowing what the object was, he pulled the cotter pin, thereby releasing the contents of the bomb, which he then threw to the floor where it exploded, as a result of which the tear gas injured claimant's eyes and impaired his sight.

The Hearing Commissioner found that 'Jordan was undoubtedly on the job at the time of the accident in the sense that it was during his work hours and at a time his employer could command his services, but a careful and painstaking consideration of the entire record convinces me that he had no duties to perform in or about the Chevrolet Police car at the time of the injury, and that his handling of the tear gas bomb was merely to pass the time and his pulling of the cotter pin thereof was in pursuit of natural curiosity which resulted so unfortunately to himself.'

The case therefore falls within the class of cases where one, while awaiting a work assignment during working hours at his place of employment in idle curiosity tampers with a strange object which is present by reason of the nature of the employer's business, is injured, bearing in mind that negligence and contributory negligence are of no consequence in Workmen's Compensation cases. Allsep v. Daniel Construction Co., 216 S.C. 268, 57 S.E.2d 427.

An injury may be regarded as arising out of the employment if it resulted from a risk or danger to which the workman was exposed by reason of being engaged in the performance of his duties although such risk or danger was not inherent in and not necessarily essential to the activities of the employment. 58 Am.Jur 720, Sec. 211.

Upon admitted or established facts the question of whether an accident is compensable is a question of law and this is not an invasion of the fact-finding field of the Commission on the part of the Court. In the instant case, however, the findings of fact are accepted. Marley v. Orval P. Johnson Co., 215 Iowa 151, 244 N.W. 833, 85 A.L.R. 969; Bethlehem Steel Co. v. Parker, D.C., 64 F.Supp. 615.

It is obvious in the instant case that without the employment the injury would not have occurred, as it arose from a danger which was part of the work environment and not common to the neighborhood. Eargle v. South Carolina Electric & Gas Co., 205 S.C. 423, 32 S.E.2d 240.

This being the first 'curiosity' case to come before this Court, we have looked to other jurisdictions for guidance and quote quite extensively therefrom.

The case of Bernier v. Greenville Mills, 1944, 93 N.H. 165, 37 A.2d 5, was a typical curiosity case. Claimant went upstairs to obtain a tool. En route he saw a shearing machine which excited his curiosity. He touched the moving cloth in the machine to see how it felt. His hand was drawn in by the suction and injured. He had not been warned of the danger or forbidden to touch the cloth. Award was affirmed upon the ground that the employment was causal at least in part of the injury which was incidental and not the result of wilful misconduct.

In Derby v. International Salt Co., 233 A.D. 15, 251 N.Y.S. 531, 'The claimant was engaged in moving salt in a hand cart. He placed the cart in position where it would be filled from a chute and while waiting for this he exercised by walking about, as the weather was cold. He received serious injuries to each hand from the explosion of a dynamite cartridge or cap. He describes the happening: 'I saw something across a long board that was laying there. It was shining. It was in a little box and I picked it up and looked at it and in the left hand I held it and * * * I pulled that wire and it exploded.' The claimant had not abandoned his employment. It was his duty to wait until the cart was filled, and observing the interesting looking box or device he picked it up to investigate. Except for the dangerous character of his find, this act would not have lessened the amount of labor which he would do. It was a peril arising because of his employment at the salt works. The principle does not differ from Miles v. Gibbs & Hill, Inc., 250 N.Y. 590, 166 N.E. 335, where an employee walking along a railroad track struck, with a long-handled hammer which he was carrying, a small object on the rail which proved to be a torpedo.'

In Pedersen v. Nelson, 1944, 267 A.D. 843, 45 N.Y.S.2d 784, claimant was a handyman, janitor and carpenter. In a house under his employer's orders, he saw and lighted a firecracker and was injured. Award was affirmed under the authority of Miles v. Gibbs & Hill, Inc., 250 N.Y. 590, 166 N.E. 335. Another case from New York is Franck v. Allen, 270 A.D. 960, 61 N.Y.S.2d 728, where an employee found on the floor of employer's cow barn an object which proved to be a dynamite cap. He struck the shell to remove the powder, which failed. He then picked up a nail from a window sill, inserted it in the cap, resulting in an explosion which injured him. Award was affirmed upon the authority of the foregoing and other cited New York decisions.

Frequently quoted in our decisions and by other courts has been the early (1913) Massachusetts McNicol's Case, cited as Re Employers' Liability Assurance Corporation, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, wherein Chief Justice Rugg undertook to define the troublesome phrase, 'arising out of'. 6 Schneider 18 discusses the subsequent development and broadening of the view and states: 'But the more adaptable rule is that an injury may be said to arise out of the employment when it arises out of the nature, condition, obligation or incident of the employment, and it is enough if there be a causal connection between the injury and the business, a connection substantially contributory though it need not be the sole or proximate cause.' The author further remarks that the Massachusetts court, which decided McNicol, supra, years before, recognized and gave effect to the more modern and liberal view in 1940 in Caswell's Case, 305 Mass. 500, 26 N.W.2d 328, 330, and said: 'An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.'

Comment upon Caswell's Case is found in 3 NACCA Law Journal 39, as follows: 'This case is a landmark in Massachusetts law as it avoided the paralyzing effect of the earlier decision in McNicol's Case requiring 'peculiar' exposure, and denial of compensation for common risks.' That author further says on the same page: 'Under such a broad definition, as well as under narrower rules, it is not necessary that the injury be one which ought to have been foreseen or expected. Even unusual or extraordinary consequences of the employment may well be compensable. The risk insured is not only the foreseeable one, but the risk which, after the event, can be seen to have its origin the nature, conditions, obligations, or incidents of the employment.'

'A slight deviation, caused by curiosity or other natural human act, is not necessarily a bar to compensation. Although the older cases used the strict common-law theories to bar even compensation claims, the modern theory is to permit an award where an instrumentality of the employer, or a risk incidental to the employment, in fact combined with the act of curiosity or other reasonably natural acts, and produced the injury. Furthermore, the defense of 'deviation' or 'curiosity' is borrowed from the common law, and workmen's...