Nolan v. Daley

• Decision Date: 12 November 1952
• Docket Number: No. 16683,16683
• Citation: 222 S.C. 407,73 S.E.2d 449
• Court: South Carolina Supreme Court
• Parties: NOLAN v. DALEY.

Page 449

73 S.E.2d 449

222 S.C. 407

NOLAN v. DALEY.

No. 16683.

Supreme Court of South Carolina.

Nov. 12, 1952.

Edward E. Saleeby, Hartsville, for appellant.

James P. Mozingo, III, F. Turner Clayton, Benny R. Greer, Jack L. Nettles, Darlington, for respondent.

BAKER, Chief Justice.

This action involves the right of an employee to sue another employee of an employer, subject to the provisions of the Workmen's Compensation Law of South Carolina, Code 1942, § 7035-1 et seq., for alleged wrongful acts of said employee in the performance of duties for their employer. The respondent, an employee of Consumer's Brick Yard, was seriously burned and permanently injured when the boom of a crane operated by the appellant, another employee, came in contact with a high voltage electric line on the premises of the employer. While it is not made to appear in the complaint, answer or the order from which the appeal was taken, it appears in the 'Statement' in the transcript of record that the respondent has already collected his Workmen's Compensation claim from the employer.

Respondent's complaint is for damages in the amount of Twenty Thousand ($20,000) Dollars, and for declaratory judgment, under Section 850-1, Code of 1942, as amended in 1948, Act April 7, 1948, 45 St. at Large, p. 2014, to the effect that, although both he and the appellant were working for an employer covered by the Workmen's Compensation Law of this State, he is entitled to sue and recover damages at common law from the appellant by reason of the alleged negligent and wilful acts of the appellant.

The appellant filed his answer admitting that respondent and he were employees of Consumer's Brick Yard; that they were engaged in unloading a car of coal, and a crane was being used for that purpose; denied the alleged wrongful acts on his part, and admitted respondent's right to a declaratory judgment, but claiming that respondent has no valid cause of action against him, and that it should be so declared by virtue of Sections 7035-10 and 7035-11 of the Code.

An order was made by the Circuit Judge to the effect that respondent was not precluded by Section 7035-10 of the Law from suing the appellant; and permitting the respondent to proceed with his action for damages. This appeal followed.

Prior to entering upon a discussion of the issue before this Court, we deem it proper to state that counsel for Carolina Power & Light Company, owner of the electric line referred to in the complaint were, by order of this Court, permitted to file a brief and make an argument as amicicuriae. It appears in their motion to dismiss that the appellant was the foreman, and not merely a fellow servant of respondent, but in the view that we take of the case, this is not material. It was also called to our attention that the Circuit Court of Appeals for the Fourth Circuit has construed the aforementioned section of our Workmen's Compensation Law. Since we are in accord with that Court's construction thereof, we will make no further reference thereto except to cite the opinion. See Burns v. Carolina Power & Light Company, 193 F.2d 525.

We shall confine ourselves to a consideration of the pertinent section, 7035-10, Code of 1942, of our Workmen's Compensation Law, which reads as follow:

'Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified.'

The particular language in this section to which our attention is directed is that which limits recovery by an employee from an employer covered under the Law, 'or those conducting his business' to compensation provided by the Act. Does the phrase 'those conducting his (employer's) business' preclude a covered employee from suing another employee for injuries growing out of and in the course of the employer's business? Or adopting the 'Question Involved' as stated by appellant and respondent in their respective briefs, 'Does the phrase 'or those conducting his business' as used in Section 7035-10 of the South Carolina Workmen's Compensation Law bar common law actions by an employee against a fellow employee as a negligent third party?'

There is a wide variance in the provisions of the Compensation Acts of the several states. The South Carolina Act is the same as the North Carolina Act in so far as the provision here involved is concerned. The Virginia Act also contains the same provision. While this Court is in no sense bound by the construction of similar Acts by the courts of another state, we may well be moved to adopt the construction placed upon such Acts by such courts when we are impressed with the logic and reasonableness of their conclusions, especially when, as here, this Court has not construed same. And, as stated in McDowell v. Stilley Plywood Co., 210 S.C. 173, 181, 41 S.E.2d 872, 876, 'Our Workmen's Compensation Act having been fashioned to the North Carolina Workmen's Compensation Act, and practically a copy thereof, the opinions of the Supreme Court of that State construing such Act are entitled to great respect.' Because the opinion so effectively deals with the contentions raised by the parties to this action, as well as with its own prior decisions, and the decisions of other states, involving similar and dissimilar Acts, we quote at great length from the very recent decision (1952) of the Supreme Court of North Carolina, in the case of Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6, 8, as follows:

'We find a diversity of opinion with respect to the remedies against third parties for injuries to employees who are subject to the provisions of compensation acts due to the variances in such provisions. 58 Am.Jur., Workmen's Compensation, section 60, page 616. In such acts where there is no immunity clause, such as we have in G.S. § 97-9, fellow workmen are generally treated as third parties within the meaning of the act. See Anno. 106 A.L.R. 1059.

'However, with the exception of the decisions in Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623, and McCune v. Rhodes-Rhyne Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219, we find no decision in this or any other jurisdiction where, under an immunity clause similar to that contained in G.S. § 97-9, it has been held that an injured employee may maintain an action at common law against a fellow employee who was responsible for his injury.

'In the Tscheiller case, while the motion was made to dismiss the action on the ground that all the parties thereto were bound by the provisions of the Workmen's Compensation Act, the immunity provision in the statute with respect to the individual defendant was not raised. Neither was it raised in the McCune case where the court entered a judgment of involuntary nonsuit as to the defendant corporation and the plaintiff submitted to a voluntary nonsuit as to the individual defendant.

'But, in the case of Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, the provision giving immunity to the employer 'or those conducting his business', contained in G.S. § 97-9, where the employer had accepted the provisions of the Workmen's Compensation Act, was expressly presented for construction by this Court.

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'The decisions of this Court, in the Essick and Bass cases, are in accord with numerous decisions, in other jurisdictions, to the effect that an employee, subject to the provisions of a Workmen's Compensation Act, whose injury arose out of and in the course of his employment, cannot maintain an action at common law against his co-employee whose negligence caused the injury. Cunningham v. Metzger, 258 Ill.App. 150; Bresnahan v. Barre, 286 Mass. 593, 190 N.E. 815; Caira v. Caira, 296 Mass. 448, 6 N.E.2d 431; Murphy v. Miettinen, 317 Mass. 633, 59 N.E.2d 252; Behan v. Maleady, 249 App.Div. 912, 292 N.Y.S. 540; Schwartz v. Forty-Second Street, Manhattanville & St. Nicholas Ave. Ry. Co., 175 Misc. 49, 22 N.Y.S.2d 752; Pantolo v. Lane, 185 Misc. 221, 56 N.Y.S.2d 227; Landrum v. Middaugh, 117 Ohio St. 608, 160 N.E. 691; Rosenberger v. L'Archer, Ohio App., 31 N.E.2d 700; Kowcun v. Bybee, 182 Or. 271, 186 P.2d 790; Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73; Peet v. Mills, 76 Wash. 437, 136 P. 685, L.R.A. 1916A, 358, Ann.Cas. 1915D, 154.

'We hold that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation, and whose acts are such as to render the corporation liable therefor, is among those conducting the business of the corporation, within the purview of G.S. § 97-9, and entitled to the immunity it gives; Essick v. City of Lexington, supra; Peet v. Mills, supra; Hade v. Simmons, 132 Minn. 344, 157 N.W. 506; Rosenberger v. L'Archer, supra; and that the provision in G.S. § 97-10 which gives the injured employee or his personal representative 'a right to recover damages for such injury, loss of service, or death from any person other than the employer,' means any other person or party who is a stranger to the employment but whose negligence contributed to the injury. And we further hold that such provision does not authorize the injured employee to maintain an action at common law against those conducting the business of the employer whose negligence caused the injury. To hold otherwise would, in a large measure, defeat the very purposes for which our Workmen's Compensation Act was enacted. Instead of transferring from the worker to the industry, or business in which he is employed, and ultimately to the consuming public, a greater proportion of the economic loss due to accidents sustained by him arising out of and in the course of his employment, we would, under the provisions for subrogation...