Kinsey v. Champion Am. Service Center

• Decision Date: 10 February 1977
• Docket Number: No. 20363,20363
• Citation: 268 S.C. 177,232 S.E.2d 720
• Court: South Carolina Supreme Court
• Parties: Carl KINSEY, Appellant, v. CHAMPION AMERICAN SERVICE CENTER and Aetna Insurance Company, Respondents.

Page 720

232 S.E.2d 720

268 S.C. 177

Carl KINSEY, Appellant, v. CHAMPION AMERICAN SERVICE CENTER and Aetna Insurance Company, Respondents.

No. 20363.

Supreme Court of South Carolina.

Feb. 10, 1977.

Thomas Kemmerlin, Jr., Columbia, for appellant.

Samuel F. Painter, Columbia, for respondents.

NESS, Justice.

This is an appeal pursuant to the Workmen's Compensation Act, Section 72--1, et seq., of the 1962 Code. The Single Commissioner, Full Commission, and Circuit Court revolved all issues against the claimant -appellant Kinsey. Our scope of review is limited to whether there is any competent evidence to support the findings made by the Commission. Robinson v. City of Cayce, 265 S.C. 441, 219 S.E.2d 835 (1975).

Kinsey was employed as an attendant at a gasoline station. He was injured by a co-worker named Brown when the two men were involved in an altercation on the employer's premises. The Commission factually found that Kinsey was the aggressor in the fight; he had been dismissed prior to the fight; and, that he was drinking on the day in question.

The Commission discounted the appellant's version of the fight due to the apparent inconsistencies in his testimony. However, considering only the versions of Brown (the other employee) and the employer, the following scenario of the events leading to the injury is established.

The appellant and Brown had a history of personal conflicts due to a disagreement about Brown's authority to supervise or instruct appellant as to his employment activities. On the day in question, the employer, after discovering that appellant had been drinking, told appellant that he 'thought he ought to go home.' The employer was cognizant of the fact that appellant did not leave. Thereafter Brown instructed appellant to wait on some cars. Appellant cursed and drew back a tire iron whereupon Brown threw a knife at the appellant who then walked away. When appellant returned Brown 'thought' he heard him mumble something so he threw a hammer at the appellant, again missing his target. The employer retrieved the hammer and instructed appellant to sit in the front office if he was not going to go home. Brown, 'before (he) realized anything,' was on the ground fighting the appellant. The appellant was seriously injured.

The Commission's basic finding was bottomed upon the inappropriately denominated 'aggressor defense.' The Workmen's Compensation Act has eliminated all issues and degrees of negligence. There is no statutory defense labeled aggressor defense. The only relevant statutory provision which, under certain well delineated circumstances, supports an aggressor defense is S.C. Code § 72--156. It reads:

'No compensation shall be payable if the injury or death was occasioned . . . by the wilful intention of the employee to injure or kill himself or another.'

The leading case in which the quoted section was held as a matter of law to be a defense is Zeigler v. S.C. Law Enforcement Division, 250 S.C. 326. 157 S.E.2d 598 (1967). There two SLED agents had been engaged in a fight which was terminated by their superior. Shortly thereafter, the agents resumed the fight. Both men were armed and decided to resolve the dispute on the pistol range. One agent was killed and his beneficiaries sought Workmen's Compensation benefits.

The court denied recovery and stated:

'We think that the only reasonable inference from the testimony is that the act of the deceased in engaging in the final altercation with his fellow officer, both of whom were armed, was not umpulsive or instinctive, but deliberate, and resulted from his voluntary acquiescence in the settlement of the dispute by violence . . . The fatal altercation was voluntarily entered into, and the conduct of the deceased was of such a grave or serious nature as to evidence a wilful intent on his part to injure his fellow employee . . .' 250 S.C. at 331, 157 S.E.2d at 600.

The test for the aggressor defense employed in Zeigler was not merely who was the instigator or aggressor. The statute does not afford a defense based merely on who strikes the first blow. Its application is limited to 'those cases where it is shown that the acts of the employee are so serious and aggravated as to evince a wilful intent to injure.' Zeigler v. S.C. Law Enforcement Division, supra, p. 329, 157 S.E.2d at 599.

One reason for the limited application of the aggressor defense is that the statutory language creating the defense is injury resulting from 'wilful intention' which has been interpreted as meaning a 'deliberate intention or formed intention.' Reeves v. Carolina Foundry & Machine Works, 194 S.C. 403, 9 S.E.2d 919, 921 (1940). If an altercation is spontaneous, impulsive, instinctive or otherwise lacking a deliberate or formed intention to do injury, the statutory defense is unavailable. ¹

Although the Commission is the fact finding body, where the evidence gives rise to but one reasonable inference the question becomes one of law for the courts to decide. Privette v. S.C. State Forestry Commission, 265 S.C. 117, 217 S.E.2d 25 (1975); Davis v. McAfee Mfg. Co., 259 S.C. 433, 192 S.E.2d 328 (1972). The testimony inescapably establishes that there were indeterminate lapses of time between the knife-throwing incident, hammer-throwing incident, and ultimate injury-producing altercation. There is no evidence that the final event was voluntarily entered into or induced by the appellant's wilful intent to injure. On the contrary, the only testimony is that the ultimate altercation was spontaneous and impulsive rendering the 'aggressor defense' inapplicable.

Section 72--14 contains a two-pronged test for compensable injuries: the injury must 'arise out of' the employment and simultaneously coexist 'in the course of' the employment. ² Douglas v. Spartan Mills, Startex Division, 245 S.C. 265, 140 S.E.2d 173 (1965). The 'arising out of' element refers to the origin of the cause of the accident. Bickley v. South Carolina Electric & Gas Company, 259 S.C. 463, 192 S.E.2d 866 (1972). Unquestionably, this element has been satisfied as the precipitation of the incidents was a dispute over work instructions.

We have recently held that an accident arises 'in the course of employment' when it occurs 'within the period of employment at a place where the employee reasonably may be in the performance of his duties . . . or engaged in something incidental thereto.' Beam v. State Workmen's Compensation Fund, 261 S.C. 327, 331, 200 S.E.2d 83, 85 (1973). We also stated in that decision:

'The rule often recognized in workmen's compensation cases is that an employee, to be entitled to compensation, need not be in the actual performance of the duties for which he was expressly employed in order for his injury or death to be in the 'course of employment' and thus compensable. It is sufficient if the employee is engaged in a pursuit or undertaking consistent with his contract of hire and which in some logical manner pertains to or is incidental to his employment. Kohlmayer v. Keller, 24 Ohio St.2d 10, 53 Ohio Ops.2d 6, 263 N.E.2d 231.' 261 S.C. at 332, 200 S.E.2d at 86.

The termination of employment does not instantaneously arrest compensation coverage. The employee is still within the course of employment for a reasonable time to allow for his departure and the conclusion of his affairs. Larson, Workmen's Compensation Law, § 26.10. However, we need not rest our determination on this principle.

The employer testified that subsequent to telling appellant to go home, he instructed appellant to sit in the front office while he returned to the side of the station to hook up a trailer. When queried as to whether appellant performed any work after he left him in the office, the employer replied, 'I couldn't say that he didn't.' It is clear that the employer did not renew or revive his former dismissal instruction. It is equally clear that appellant was still subject to his employer's supervision and control at the time of the incident. There is no evidence that appellant was not engaged in his employment duties or some activities incidental thereto. At the time of the altercation, appellant was, by the consent and direction of his employer, at a place where he could reasonably be engaged in the performance of his duties. Under the facts and circumstances of this case we are unable to conclude that the injury did not arise in the course of his employment.

Finally, in order...