Portee v. South Carolina State Hospital, 17492

• Decision Date: 14 January 1959
• Docket Number: No. 17492,17492
• Citation: 106 S.E.2d 670,234 S.C. 50
• Court: South Carolina Supreme Court
• Parties: Daisy PORTEE et al., Respondents, v. SOUTH CAROLINA STATE HOSPITAL et al., Appellants.

Page 670

106 S.E.2d 670

234 S.C. 50

Daisy PORTEE et al., Respondents, v. SOUTH CAROLINA STATE HOSPITAL et al., Appellants.

No. 17492.

Supreme Court of South Carolina.

Jan. 14, 1959.

T. C. Callison, Atty. Gen., Julian L. Johnson, Asst. Atty. Gen., for appellants.

C. T. Graydon, J. Bratton Davis, Columbia, for respondents.

OXNER, Justice.

This is an appeal from an order of the Circuit Court affirming an award by the Industrial Commission to the widow and minor children of Grover Portee who died on October 16, 1957. The questions presented are (1) Have the claimants shown that the deceased suffered an injury by accident? (2) If so, did such injury arise out of and in the course of his employment?

The deceased, Grover Portee, a Negro about 32 years of age and apparently in good physical condition, was employed as a male attendant or orderly in the Negro Division of the South Carolina State Hospital. He and his wife, who was employed in another ward at this institution, reported for work at seven o'clock on the morning of October 16, 1957. He was suffering from a sore throat. About 8:40 that morning he escorted a patient to the ophthalmologist and left him with the attendant in that office. He then went to the office of Margie Bradley, a technician at the hospital, and requested medication for his sore throat. As she had done on several other occasions when deceased had a similar ailment, she gave him a shot of penicillin. The needle jammed and she was unable to complete the injection. Shortly thereafter the deceased was seized with tremors and commenced frothing at the mouth. A physician at the hospital was immediately summoned. The deceased was found in a critical condition. Two other physicians were called. They attempted to revive him with stimulants and artificial respiration. He died at 9:30 that morning, or within an hour after he received the shot of penicillin. It is conceded that death was due to 'acute anaphylactic shock caused by procaine penicillin.'

Margie Bradley, a Negress in her late twenties, had been employed at the State Hospital for about four years. After graduating from high school she went to college for a period of three years, and had attended 52 classes in medical training at the hospital. There were no registered nurses in her ward. Her work was varied and included giving medicine to the patients. She usually gave the injections of penicillin. She had access to this drug and to the needles. She testified that she was not permitted to give penicillin to the patients except when directed to do so by one of the physicians but without such authorization she had from time to time given this drug to persons who were not patients. The Industrial Commission found, to which there has been no exception: 'From the evidence and exhibits it can be deduced that it was common practice at this State Hospital for the employees to administer medications to each other as the occasions arose.'

The Commission concluded that the act of the deceased in taking penicillin was not entirely personal but was for the mutual benefit of himself and his employer. It found: 'It was to the employer's advantage that the employee-claimant receive this penicillin shot, as he had done on previous occasions, to ward off any possibility of passing the infection on to the patients at the South Carolina State Hospial.'

We have no difficulty in concluding that deceased suffered an injury by accident. Alewine v. Tobin Quarries, Inc., 206 S.C. 103, 33 S.E.2d 81; Whitfield v. Daniel Construction Co., 226 S.C. 37, 83 S.E.2d 460. It is true that the injection of the penicillin was not an accident. It was expected and intended. But the tragic result was wholly unexpected and unintended, constituting the element of accident. The deceased had suffered no ill effects when given penicillin by Margie Bradley on previous occasions. In Alewine v. Tobin Quarries, Inc., it was held that death resulting from infection of a smallpox vaccination would was an accidental one.

The question of whether the accident arose out of and in the course of the employment is a more troublesome one. Appellants say that deceased, without the consent or knowledge of his employer, left 'his post of duty' and in violation of the rules of the hospital prevailed upon another employee to give him an injection of penicillin solely for his personal comfort and not for any reason connected with his employment.

In Johnson v. Merchant's Fertilizer Co., 198 S.C. 373, 17 S.E.2d 695, 697, the following was quoted with approval: 'An injury arises 'in the course of employment,' within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. An accident arises 'out of' the employment, when it arises because of it, as when the employment is a contributing proximate cause.' In McCoy v. Easley Cotton Mills, 218 S.C. 350, 62 S.E.2d 772, 774, the Court said: '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, occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment.'

In Mack v. Branch No. 12, Post Exchange, 207 S.C. 258, 35 S.E.2d 838, 840, the following was quoted with approval: '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 necessary 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.' In Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97, 99, the Court said: 'An employee, while about his employer's business, may do those things which are necessary to his own health and comfort, even though personal to himself, and such acts are regarded as incidental to the employment.'

In Mack v. Branch No. 12, Post Exchange, supra, 207 S.C. 258, 35 S.E.2d 838, and McCoy v. Easley Cotton Mills, supra, 218 S.C. 350, 62 S.E.2d 772, the use of tobacco was placed in the list of acts for the comfort of an employee while at work and it was accordingly held that smoking is an incident of the employment and there is no break in the employment when an employee temporarily leaves his work to gratify his desire to smoke. In Mack v. Branch No. 12, Post Exchange, supra, compensation was allowed where an employee, just before beginning work, while in an anteroom of the main building, spilled some lighter fluid on his trousers which was ignited when he attempted to light a cigarette, resulting in burns on his leg.

We now turn to the cases involving the right to recover compensation where death or injury results from an effort of an employee while at work to obtain relief from illness or discomfort. Compensation has been allowed in some cases and denied in others. 58 Am.Jur., Workmen's Compensation, Section 276; Larson's Workmen's Compensation Law, Volume I, Section 13.21; Annotation 144 A.L.R. 361.

In Elliott v. Industrial Accident Commission, 21 Cal.2d 281, 131 P.2d 521, 522, 144 A.L.R. 358, it was held that the death of an...