McCoy v. Easley Cotton Mills

• Decision Date: 15 December 1950
• Docket Number: No. 16446,16446
• Citation: 62 S.E.2d 772,218 S.C. 350
• Court: South Carolina Supreme Court
• Parties: McCOY v. EASLEY COTTON MILLS.

Page 772

62 S.E.2d 772

218 S.C. 350

McCOY v. EASLEY COTTON MILLS.

No. 16446.

Supreme Court of South Carolina.

Dec. 15, 1950.

Haynsworth & Haynsworth, Greenville, for appellant.

Culbertson & Foster, Greenville, for respondent.

OXNER, Justice.

This is a case under the Workmen's Compensation Act, Code 1942, § 7035-1 et seq. Claimant, Broadus McCoy, was employed at the Easley plant of the Woodside Mills, a self- insurer. About 6:30 P.M. on April 7, 1949, while smoking in the yard of the mill, he was unintentionally struck in the left eye with a copper tube by a fellow employee. He lost the sight of this eye, which was later removed and an artificial eye inserted.

A claim for compensation was denied by the hearing Commissioner upon the ground that the accident did not arise out of and in the course of claimant's employment. On appeal to the full Commission, the findings of the hearing Commissioner were reversed and an award made to claimant for the loss of his left eye and for serious facial disfigurement. The Circuit Court affirmed the award of the full Commission. The employer has appealed.

There are several questions raised by the exceptions. We shall first determine whether there is any evidence reasonably warranting the conclusion that the claimant's injury arose out of and in the course of his employment. There is a serious dispute as to some of the material facts but the testimony, viewed in the light most favorable to the claimant, sustains the following statement found in the order of the Court below:

'The claimant was at the time of his injury employed by the defendant as a combination doffer and oiler on the second shift. He suffered an accidental injury to his left eye resulting in the removal of the eye. On the date in question, the claimant and other employees were just outside of the defendant's plant for the purpose of smoking. The injury occurred during an interval in the work, permitted by the employer so that the employees could smoke. They were paid for the time so engaged. The injury occurred on the premises of the employer.

'Among the employees taking time out to smoke was the claimant and one Roy Holder. It was generally known that the said Roy Holder was 'goosey', meaning ticklish. As the claimant came out of the plant to smoke and passed Holder, claimant 'gooded', or punched him. After this, claimant and Holder began a discussion about some copper piping found on the premises and the adaptability of the pipe to use in making a travis key used by them in their work. After this discussion, claimant walked away from Holder and was standing with his back to him. Holder was holding in his hands a piece of the copper pipe, referred to as being in lengths from ten to twelve feet. As the claimant was standing with his back to Holder, someone (unidentified in the record--but neither claimant or Holder) said 'look out'. When the call to 'look out' was made, claimant turned quickly, striking the piece of copper pipe held by Holder, inflicting the injury which resulted in the removal of claimant's eye.

'From the record, it is fairly deducible that approximately five minutes elapsed between the 'goosing', or punching, of the said Holder by claimant and the injury. There was no continuation of the horseplay. The men immediately involved were not playing at the time of the injury and were not then engaged in horseplay. They were not mad and no assault is involved. The call to 'look out' was not made by the claimant or Holder but the reaction of the claimant in turning quickly into the pipe held by Holder was in response to the call so made by some other employee.'

The 'copper piping' mentioned in the foregoing statement consisted of copper tubing about a quarter of an inch in diameter and ten or twelve feet in length. These tubes, which was being used in air conditioning the plant, had been left in a box just outside the door of the mill by a construction company.

We think it is clear that the accident occurred 'in the course of' claimant's employment. While smoking was not, of course, one of the obligatory duties of his employment, yet it was something permitted by the employer. Consequently, no break in claimant's employment resulted from the fact that he temporarily left his job and walked outside the building to smoke. Mack v. Branch No. 12, Post Exchange, Fort Jackson, 207 S.C. 258, 35 S.E.2d 838.

Did the accident arise 'out of' claimant's employment? The hearing Commissioner concluded that claimant sustained his injury through horseplay initiated by him, and that under the recent case of Allsep v. Daniel Construction Co., 216 S.C. 268, 57 S.E.2d 427, he was not entitled to compensation. It was held in that case that compensation may be awarded for injuries sustained through horseplay which was not participated in by the injured employee, but the question of whether an aggressor could recover compensation was not determined. It is not necessary on this appeal to enter into a discussion of the distinction alluded to in the Allsep case for a majority of the Commission concluded that claimant's initial act of horseplay was entirely disassociated from his subsequent accident and injury. It is true that claimant engaged in horseplay about the time Holder came out of the mill and while there is some testimony reasonably warranting the inference that he had resumed this diversion just before being injured, there is abundant testimony to the effect that he was not engaged therein at the time of his injury and had not been for approximately five minutes prior thereto.

Appellant further contends that even though horseplay had no part in the accident, claimant's injury did not have its origin in a risk connected with his employment but arose from circumstances wholly disconnected therewith. It seems to be undisputed that just prior to the accident there was some discussion with reference to the possible use of this copper tubing in making travis keys used by doffers. Appellant says that this discussion was not in furtherance of its business because doffers had nothing to do with the making of travis keys and were allowed to use only those made by the second hands. But we do not regard this fact as having any material bearing on the question. It seems to be well settled that an employee, in order to be entitled to compensation, need not necessarily be engaged in the actual performance of work at the time of injury; it is enough if he is upon his employer's premises,...