Stewart v. McLellan's Stores Co.

• Decision Date: 13 May 1940
• Docket Number: 15086.
• Citation: 9 S.E.2d 35,194 S.C. 50
• Parties: STEWART v. McLELLAN'S STORES CO. et al.
• Court: South Carolina Supreme Court

9 S.E.2d 35

194 S.C. 50

STEWART v. McLELLAN'S STORES CO. et al.

No. 15086.

Supreme Court of South Carolina

May 13, 1940

Rehearing Denied May 27, 1940.

Osborne Butler & Moore, of Spartanburg, for appellant.

Barron Barron & Walker and Young & Long, all of Union, for respondent.

BONHAM Chief Justice.

Plaintiff brought action in the Court of Common Pleas for Union County to recover damages, actual and punitive, for injuries alleged to have been suffered by reason of an assault and battery wilfully, intentionally and maliciously inflicted upon her by C. E. Johnson, the manager of defendant's store, who with considerable force and violence maliciously struck and slapped plaintiff on the right side of her face by which unlawful, wilful and malicious assault and battery plaintiff was greatly humiliated, outraged and embarrassed and dejected, and injured in her face and nervous system, and caused to suffer great pain and anguish of mind and body.

For answer, the defendant set up for a first defense a general denial. And for a second defense, that plaintiff's remedy, if she had any, is under the Workmen's Compensation Act, which rights are exclusive.

The plaintiff demurred to this second defense on the ground that the allegations contained in the complaint do not state facts sufficient to constitute a defense to plaintiff's cause of action, in that the provisions of the Workmen's Compensation Act do not affect and have no relation to a cause of action for damages arising out of a wilful and malicious assault and battery; and upon the further ground that the remedy and relief afforded by the Act is confined to causes of action arising out of accidents suffered by employees in the course of employment.

Argument on the demurrer was heard by Judge Gaston, who filed an order sustaining the demurrer. From this order, the appeal comes to this Court upon exceptions which are confined by the appellant, in its brief, to the single issue: Does the Workmen's Compensation Act provide the exclusive remedy for a wilful and malicious assault and battery committed by the employer on the employee? Is this such an accident as falls within the provisions of the Workmen's Compensation Act, or has the employee a right of action against the employer at Common Law?

Appellant's counsel in this case have filed an exhaustive and able brief, in which they have reviewed decisions from nearly all of the Courts of the various states, and of the Federal Courts.

This Court in the case of Manning v. Gossett Mills et al., 192 S.C. 262, 6 S.E.2d 256, 258, had this to say: "The large majority of the states have adopted Workmen's Compensation Acts, and nearly all of them have features in common. It is interesting to study and compare them, and note the decisions of the Courts of the various states anent their elucidation of the provisions thereof. However, these are not binding on this Court. We must depend upon the findings of our own Courts in passing upon the provisions of the Workmen's Compensation Act of our State."

The question we are called upon to decide now is entirely one applicable to the language of the South Carolina Workmen's Compensation Act. In other words, does the Workmen's Compensation Act of South Carolina provide an exclusive remedy in a case of the character before us now, in which the person who would be claimant under that act suffered no physical injury, which left no visible effect, and which did not cause the plaintiff any actual physical pain, but in which other things were done which entitled him to some remedy? This question has not been expressly decided in this State.

In the case of Cummings v. McCoy, 192 S.C. 469, 7 S.E.2d 222, 223, Cummings brought action against McCoy in the Court of Common Pleas to recover damages for injuries which he alleged he sustained when McCoy, the manager of the Corporation, struck a match and threw it on or near the plaintiff, who had already informed McCoy that he had spilled gasoline on his trousers, and which ignited the trousers of the plaintiff. The defendant demurred to the complaint; the demurrer was overruled. On appeal the order overruling the demurrer was reversed and the Court held that it was a matter within the limits and provisions of the Workmen's Compensation Act. This Court predicated its opinion, reversing the lower Court, on the ground that: "There is no allegation that the defendant's manager intended to injure the plaintiff; and the allegation of wilfulness and wantonness is more reasonably attributable to the striking and throwing of the match than to a purpose to injure the plaintiff."

It is patent that if there had been an allegation in the complaint that the defendant's manager intended to injure the plaintiff, when he struck and threw the match which ignited the gasoline on plaintiff's trousers, there would have been a cause of action outside the provisions of the Workmen's Compensation Act and plaintiff would not have been confined to his remedies under that Act. In the present case, the plaintiff's action is for an assault and battery intentionally inflicted upon the employee by the representative of the employer. In the above case of Cummings v. McCoy, this Court said: "Whether the Act shall be construed to embrace injuries wilfully (that is to say intentionally)...