STUKES
Justice.
The
plaintiff, respondent here, brought this action for damages
by the service of summons and complaint on August 5, 1941.
Because of the nature of the issue the material allegations
of the complaint are copied:
"2.
Plaintiff alleges that on August 1, 1941, he was employed by
and was working for J. A. Jones Construction
Company, Inc., as an employee and that he was working
directly under the supervision and directions of T. M
Parkman foreman employed by and working for the defendant and
that
his duty as an employee was that of a water boy, and as such
it was his duty to take care of the ice, make up ice water
and deliver the same to various employees working under the
direction and supervision of T. M. Parkman.
"3.
The plaintiff is informed and believes that T. M. Parkman the
foreman had his son--Parkman employed and working on the job
under his direction and supervision as a carpenter or
carpenter's helper and that about 8:30 a. m., when the
ice was delivered on the job Mr. T. M. Parkman the foreman
specifically instructed the plaintiff herein to be careful
with the ice and see that it was kept wrapped up because he
did not know whether they would get any more ice on that day.
Plaintiff further alleges that he had made up ice water and
was delivering same when someone unwrapped the ice and
chipped up a large quantity of same and left the ice
unwrapped and that he, the plaintiff, came back and found the
ice unwrapped and saw a man with a thermos bottle standing
nearby whom the plaintiff later learned was Mr. T. M.
Parkman's son, who admitted to him that he unwrapped the
ice and left it exposed and when told by the plaintiff that
the foreman's instructions were that no one should bother
the ice except the said plaintiff, got furiously mad, cursed
and abused the plaintiff and threatened to beat him up.
"4.
Plaintiff alleges that a few minutes before 2 p. m., he
delivered ice water to the employee who had told him he had
unwrapped and left the ice and that at the time the said
employee again cursed and abused the plaintiff while standing
on the outside of the building and that the said employee
left his job or place where the water had been delivered to
him, went around and came into the building where the
plaintiff was and did then and there strike, bruise and did
bodily harm to the plaintiff without a just cause or
provocation and that said plaintiff knowing that he was a
colored man and that the aggressor and his
aids and assistants were white men sat the bucket of water
down and left the premises, went directly to the foreman, T.
M. Parkman and told him what had happened and asked for a
discharge stating at the time that he could not work on the
job, or properly perform his duties when some white man was
threatening to jump on him and did strike, beat, and bruise
him, however, the foreman refused at the said time to give
him the discharge notice asked for and instructed the
plaintiff to come go with him to the place where the
difficulty had arisen so that he could point out the man who
had caused the trouble and when he (the foreman) reached the
premises and found out that his son was the employee that had
caused trouble, he the said T. M. Parkman, agent and foreman
of the defendant had a private talk or conversation with
young Parkman then called to the plaintiff, who thought he
was going to get the discharge asked for, and when he the
said plaintiff came within reaching distance of the
defendant's agent or foreman, the said foreman who was
then furiously mad grabbed the plaintiff in his shirt collar
without notice or just cause or provocation and did with the
aid and assistance of his son, double team, strike, beat,
bruise, and commit an assault and battery upon body and
person of the plaintiff by striking him in the face with his
fist and kicking him about the body. Plaintiff further
alleges that the defendant through and by its agent did
wilfully, maliciously and high-handedly strike the plaintiff,
beat him unmercifully about the head and face and other
portions of his body and did push him back over and against
an automobile fender and hold him down while he and his son
both struck, beat, bruised, and assaulted the said plaintiff,
seriously injuring and damaging his face, head, neck,
shoulders, and body.
"5.
Plaintiff alleges that no advances were made by him and no
causes were given to justify the wilful, malicious,
high-handed, and negligent acts of the defendant in creating
an assault and battery upon him and that under the
circumstances he was unable to protect himself and that he
was caused to suffer physically and mentally
and was afraid that he was going to be killed and possibly
would have been more seriously injured and damaged had it not
been for one H. M. Smith, a white man, who pulled the
defendant's foreman, T. M. Parkman off and away from the
plaintiff.
"6.
Plaintiff alleges that the acts and doings of the defendant
were caused by and due to the gross carelessness of the
defendant in having in its employment a foreman with an
ungovernable temper and a total disregard for the
plaintiff's rights and that the above set out injuries
were caused to this plaintiff by the wilful, malicious, and
negligent acts of the defendant's agent. T. M. Parkman
while acting in the usual and ordinary scope of his
employment or agency.
"7.
Plaintiff alleges that he was injured and damaged by the
defendant while performing the duties assigned to him on
orders given him by the foreman and that the acts and doings
of the defendant in assaulting or injuring and damaging the
plaintiff was wilful, malicious, high-handed and done by the
defendant's agent or foreman while handling, supervising,
directing or working a group of men placed in his custody or
control.
"8.
Plaintiff alleges that the acts and doings of the defendant
were the direct and proximate cause of his having been
wilfully and maliciously assaulted, bruised and made to
suffer both physically and mentally and that as a further
result of the wilfulness, carelessness and high-handedness on
the part of the defendant he has been made to suffer both
actual and punitive damages."
The
answer of the appellant contained a general denial and the
following by way of a second defense: "1. The defendant
alleges that if the plaintiff suffered the injuries as set
forth in the complaint, which is specifically denied, this
action is barred under the provisions of Section 11 of the
South Carolina Workmen's Compensation Act, as amended in
1937, in that both plaintiff and the defendant elected to
come under the terms of said Act, and such section provides
that in such event it shall exclude all other rights and
remedies of such employees, as against
employer at common law, or otherwise, on account of such
injury."
Upon
service of the answer respondent moved before the Judge of
the Richland County Court, wherein the action was pending,
for an order striking out the foregoing quoted defense
"as irrelevant, sham, redundant, immaterial, and not
responsive to the plaintiff's complaint and in violation
of Section 14 of the Workmen's Compensation Act, as
amended in 1937 [Act March 27, 1937, 40 St. at Large, p.
153], in that the tort action complained of does not come
under the Workmen's Compensation Law," etc.
The
Court granted the order, the material part of his ruling
being as follows: "After a careful consideration of the
matter, it appears to me that the complaint does not set
forth facts sufficient to bring this case within the purview
of the Workmen's Compensation Act, and that this case is
governed by the case of Stewart vs. McLellan's Stores
reported in 194 S.C. page 50, 9 S.E.2d page 35."
The
appellant states the question raised by its exceptions to be:
"Is it proper for a defendant to plead the defense, in a
common law action, that both plaintiff and defendant are
subject to the Workmen's Compensation Act [Act July 17,
1935, 39 St. at Large, p. 1231], and, therefore, the action
is barred by the provisions of Section 4 of the Act?"
Respondent
relies upon the position that the Compensation Act is
applicable only to injury by accident and cites Section 2 of
the Act, sub-section (f), wherein "injury" is
defined as such by accident arising out of and in the course
of employment.
But the
question is not that simple and in one form or another has
been the subject of many decisions of the Courts of other
jurisdictions under their various compensation laws. Digests
of a multitude of such cases, and the full reports of some,
are found in and preceding annotations in L.R.A.1916A, 306,
309; L.R.A.1918E, 498; 15 A.L.R. 588; 21 A.L.R. 758; 29
A.L.R. 437; 40 A.L.R. 1122; 72 A.L.R. 110; and 112 A.L.R.
1258.
The general rule deducible from these decisions and
we think based upon reason and justice is that although an
employee be wilfully assaulted by another, whether fellow
servant, foreman or outsider, the resulting injury will be
deemed accidental and within the terms of the Compensation
Law when it can be said that the assault proximately resulted
from the prosecution of the employer's business,--in the
terms of the Act: arose out of and in the course of the
employment. Section 2(f).
The
words "arose out of" refer to the origin or the
cause of the accident while the words "in the course of
employment" refer to the time, place and circumstances
under which the accident occurs. Even though the injury was
not one that could have been foreseen or expected, it may be
that after the event, it may be seen to have had its origin
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