Mack v. Branch 12, Post Exchange, Fort Jackson

• Decision Date: 09 November 1945
• Docket Number: 15778.
• Citation: 35 S.E.2d 838,207 S.C. 258
• Parties: MACK et al. v. BRANCH NO. 12, POST EXCHANGE, FORT JACKSON, et al.
• Court: South Carolina Supreme Court

35 S.E.2d 838

207 S.C. 258

MACK et al. v. BRANCH NO. 12, POST EXCHANGE, FORT JACKSON, et al.

No. 15778.

Supreme Court of South Carolina

November 9, 1945

Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.

Proceeding under the Workmen's Compensation Act by Effie Ford Mack and Sara Mack, claimants, to recover compensation for death of Lemuel Mack, employee, opposed by Branch No. 12, Post Exchange. Fort Jackson, employer, and American Automobile Insurance Company, insurance carrier. From a judgment affirming an award of compensation by the Industrial Commission, the employer and insurance carrier appeal.

Roger M. Heyward, of Columbia, for appellant.

Sloan & Sloan, of Columbia, for respondent.

STUKES Justice.

Lemuel Mack, about 57 years old, was employed for over two years as a janitor in a branch Post Exchange at Fort Jackson, near Columbia. His daily employment began at 1:30 P M. Some minutes, or possibly a half hour, before that time on September 28 or 29, 1943, he arrived on the premises for work and first entered a small room adjacent to the main store in which were kept empty soft drink and beer bottles and crates laundry, brooms for cleaning and possibly other plunder. The only witness with any actual knowledge of the circumstances was another colored janitor and handyman, Eugene Osby, who was at work and about to be relieved by Mack at 1:30. He thought that Mack entered the anteroom in preparing to go to work, quoting, 'getting hold of a box or something or a broom to sweep.' Hearing a commotion in the room, Osby and the manager entered and found Mack with his trousers afire, which they extinguished after it had badly burned his left leg below the knee. There was no rule of the employer against smoking by the employees in the room in which the injury occurred and such was the custom.

The employer's report of the injury to the Industrial Commission, pursuant to the workmen's compensation law signed by a Second Lieutenant as assistant Post Exchange Officer, stated the injury as having been by accident on September 29, 1943 (quoting), 'while working he (Mack) spilled lighting fluid on his clothing' which 'became ignited, supposedly by a cigarette, burning the worker's leg,' and the report contained the further information that there was an infection in the burn and that the physician was 'Moore Greene Clinic, Gervais Street, Columbia, S. C.' The report was not dated; and the record does not disclose the time of its receipt by the Commission.

Dr. Austin T. Moore filed with the Commission report dated October 14, 1943, wherein the time of the accident was fixed at noon, September 28, 1943, and the patient's description of the accident was given, as follows: 'Spilt some cigarette fluid on left lower leg and another man dropped a match and it burned his leg.' Dr. Moore reported second degree burn of the lower left leg as the patient's only symptom of previous or existing accident or disease; that he was first treated on October 14th by the cleaning and dressing of the wound whereupon Mack was sent to the Columbia Hospital and the report indicated that he should be treated there for two or three weeks.

As is seen, the facts in the record relating to the circumstances of the accident are quite meager but the Commission found that such occurred. Difficulty thereabout is obviated by the employer's report above mentioned and the admissions of appellants, particularly in the statement of facts contained in their brief in which it is said that after Mack's entry into the storeroom at about one P. M., he spilled lighter fluid on his trouser leg which was ignited when he attempted to light a cigarette, and that the wound became infected and he was sent to the hospital about October 14, 1943. He died there November 7th following.

Dr. James T. Quattlebaum attended Mack while the latter was in the hospital and he witnessed the post-mortem examination or autopsy which was made by Dr. Roy N. Barnett. The latter's complete report was in evidence and he also testified, as did Dr. Quattlebaum. Neither would say, despite extended examination, that the burn contributed to, or accelerated, Mack's death. It was largely healed at the time of the latter and these doctors agreed in their opinion that death resulted solely from arteriosclerosis. There was no other medical witness. This testimony will be later discussed in more detail as will the death certificate which was prepared by Dr. Quattlebaum.

The Hearing Commissioner concluded that the accident and death were compensable, that Sara Mack is the surviving widow and entitled to receive the payments of compensation, except that Effie Ford Mack, the employee's pretended second wife, should be reimbursed $200 funeral expenses and also paid a reasonable amount for her nursing services during the deceased's last illness and reimbursed all proper expenses which she paid on account of the accident and illness. The majority of the Commission confirmed these findings upon review and adopted the conclusions and award of the Hearing Commissioner.

Upon Appeal to the Circuit Court the award of the Commission was affirmed in all respects and judgment entered accordingly. Question relating to the jurisdiction of the Industrial Commission and applicability of the compensation law was argued before the Circuit Court and decided adversely to appellants, but they now abandon this position and have appealed to this Court upon two main propositions--first, that the accidental injury to the employee did not arise out of and in the course of his employment, and second, that there is no basis in the evidence for the finding of a causal connection between the accidental injury and the subsequent death of the employee.

The first question must undoubtedly be decided against the contention of appellants. It is universally held that the protection of the workmen's compensation law attends a covered employee not only during his hours of labor but before and after, when his activities are incident to his employment. Here they were; he had arrived upon the employer's premises to undertake his regular work, shortly before the usual hour of beginning. There is no suggestion in the record that he went to the Exchange for any other purpose than to pursue his occupation, so his presence there was clearly incidental to his employment. 71 C.J. 662, 671; Horovitz, Workmen's Compensation Laws, p. 159 et seq.; Eargle v. South Carolina Electric & Gas Co., 205 S.C. 423, 32 S.E.2d 240.

And granting that the accidental injury resulted from his effort to gratify his desire to smoke, such activity did not remove Mack from the protection of the compensation law.

The principle is close akin to the common law of master and servant and the incidental doctrine of detour. Adams v. South Carolina Power Co., 200 S.C. 438, 21 S.E.2d 17; Carroll et al. v. Beard-Laney, Inc., S.C., 35 S.E.2d 425, filed September 10, 1945. 'Slight deviations are no defense under most state decisions. Thus a slight deviation to get a chew of tobacco, or to ask a fellow employee the time, or to throw away a cigarette, is harmless, and awards were upheld where the injury occurred during the deviation.' Horovitz, p. 117.

The reason upon which the rule is founded, insofar as it relates to smoking on the job, is so well stated in the judgment in Whiting-Mead Company v. Industrial Accident Comm., 178 Cal. 505, 173 P. 1105, 1106, 5 A.L.R. 1518, that we reproduce from it the following:

'From these cases there is deducible a rule which is thus stated in one of them (Archibald v. Workmen's Compensation Com'r [77 W.Va. 448, 87 S.E. 791, L.R.A.1916D, 1013]): 'Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of his work. * * * That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment.'

'Are we to place the use of tobacco in this list of ministrations to the comfort of the employed? Is its use necessarily contemplated in the course of such an employment as that in which Duarte was engaged? The petitioner, in answering these questions in the negative, places great dependence in the argument that tobacco is used to appease a self-created appetite and not a natural appetite. The argument does not appeal to us. In an endeavor to determine what indulgences of human beings are responsive to the demands of natural, what to unnatural, appetites, we should be carried to the depths of biological and physiological research. Such labor is not necessary. We have the tobacco habit with us, and must deal with it as it is. It will not do to say that mankind would be better for a lack of the weed, even if that statement be true. Tobacco is universally recognized to be a solace to him who uses it, and it may be that such a one, unless he finally shakes off the habit, cannot perform the labors of his life as well without it as with it. In the present war one of the constantly recurring calls upon the public of the world is for tobacco for the comfort of the participants in the conflict. Nor are the books without their cases to the substantial effect that the employer must expect the employed to resort to...