It is clear that the real question involved in this appeal is, Was the deceased, George Boozer, an employee of the plaintiff, Clinton Cotton Oil Company, at the time of the accident in question, resulting in his death? In this connection I quote the testimony adduced at the trial, bearing on that question, as follows:
"DIRECT EXAMINATION "Witness: J.H. Pitts, Jr.
"Q. Where do you live? A. Clinton.
"Q. What is your business? A. I am the local manager of the Clinton Cotton Oil Company.
"Q. I believe the Kershaw Oil Mills owns the Clinton Cotton Oil Company? A. Yes, sir.
"Q. How long have you been manager of the Clinton Cotton Oil Company? A. Since 1926.
"Q. Did you ever know a Negro by the name of George Boozer? A. Yes, sir.
"Q. Where is George? A. He is dead.
"Q. When did he die? A. In 1933.
"Q. What caused his death? A. He was injured by a truck and died a few days afterwards.
"Q. Whose truck? A. Clinton Cotton Oil Company.
"Q. How many days was it before he died after he was injured? A. About four or five days.
"Q. Do you know Mamie G. Boozer? A. Yes, sir.
"Q. Who is she? A. His wife.
"Q. Did she administer on his estate? A. Yes, sir.
"Q. Did she sue that Clinton Cotton Oil Company? A. Yes, sir.
"Q. When this accident took place did you notify the Hartford Accident and Indemnity Company, who carried your insurance? A. Yes, sir.
"Q. Did you ask that Company to come in and defend the case? A. Yes, sir. *Page 467
"Q. Did they assume that liability or not? A. They did not.
"Q. They denied liability? A. Yes, sir.
"Q. Was the suit brought on for trial in the Court House at Laurens? A. Yes, sir.
"Q. Who represented the Clinton Cotton Oil Company? A. Mr. Wade and yourself.
"Q. What was the amount of the suit? A. They sued for ten thousand dollars, I think.
"Q. Was it a case of liability as far as you were concerned? (Here occurred discussion between counsel and the Court.)
"Q. Was George Boozer an employee of the Clinton Cotton Oil Company? (Here occurred discussion between counsel and the Court.)
"Q. I ask you the simple question, Mr. Pitts — was George Boozer an employee of the Clinton Cotton Oil Company?
"Mr. McKay: I think he can state the facts, but that is a legal conclusion.
"A. No, sir, he was not.
"Q. He was not working for you? A. No, sir.
"Q. Have we ever admitted in Court or anywhere that George Boozer was employed by the Clinton Cotton Oil Company at the time of this accident? A. No, sir. (Here occurred discussion between counsel and the Court.)
"Q. Tell whether or not the Insurance Company had all the facts surrounding this accident and did send their representative there to investigate the case? A. They had all opportunity to know about it and they sent a man there, but they didn't defend the case.
"Q. And it was necessary for the Company to defend the case and pay the judgment? A. Yes, sir." *Page 468
"CROSS EXAMINATION "By Mr. McKay:
"Q. You are manager of the Clinton Cotton Oil Company? A. Yes, sir.
"Q. On the night the negro was killed he had come to your office? A. Yes, sir.
"Q. To borrow some money to get some cigarettes? A. Yes, sir.
"Q. It was raining? A. It had been and was starting to rain again.
"Q. When had you last paid him his wages? A. I think he had probably drawn some wages the week before.
"Q. At that particular time the mill was not operating, was it? A. The fertilizer plant was. That is what we were working.
"Q. His particular line of work was not going on? A. We had been working on, but he was working on the R. F.C.
"Q. What work did he do? A. The days he did work he rolled the wheelbarrow in the fertilizer plant, but he had not worked there except but a few days that spring.
"Q. He had worked off and on for you a long time? A. He worked nearly every fall at the gin house.
"Q. The type of work he was employed to do was not in the fertilizer plant? A. He could have, but he preferred to work for the R.F.C.
"Q. When he was there didn't one of your trucks come up filled with chicken feed? A. Some kind of feed.
"Q. It looked like it was going to rain? A. Yes, sir.
"Q. You directed him to get out and help unload that truck? A. I didn't direct him to, but I asked him to help unload it, and it came up a rain and they stopped unloading, and he ran out of the door and came back.
"Q. You as manager wanted to get that stuff in out of *Page 469 the rain as soon as possible? A. Yes, sir, I didn't want it to get wet.
"Q. You are still the manager up there? A. Yes, sir."
"REDIRECT EXAMINATION "By Mr. Brown:
"Q. This truck brought a load of some kind of feed stuff up and backed it up against the warehouse? A. Yes, sir.
"Q. And a rain was coming up? A. Yes, sir.
"Q. And you and the night watchman and all ran out to help get the feed in the warehouse? A. Yes, sir.
"Q. And the negro volunteered to help? A. Yes, sir.
"Mr. McKay: I object to that.
"Mr. Brown (continuing): Well, how did the negro get out there? A. The truck came up with the feed, and a night watchman and I were there, and the truck drove in and in a hurry, and I said let's get that feed off right quick, and you might say I was speaking for the night watchman and myself and the negro and all, and I came out of the door just in front of the negro, and I lacked about that much getting killed instead of the negro.
"Q. The back end of the truck was up here (indicating)? A. Yes, sir.
"Q. And this was a brick warehouse? A. Yes, sir.
"Q. You say it came near getting you? A. Yes, sir.
"Q. It crushed the negro to death? A. Yes, sir, he died a few days afterwards; he was injured."
In effect, it is the contention of appellant that the only reasonable inference to be drawn from the testimony is that George Boozer was at the time of said accident an employee of the plaintiff, the said Clinton Cotton Oil Company, and for that reason the trial Judge should have granted defendant's motion for a directed verdict; whereas, the plaintiff contends that George Boozer at the time of receiving said fatal injuries was not employed by nor working for the plaintiff, but was attempting to perform a gratuitous act, and that the trial Judge properly permitted the jury to decide *Page 470 that issue; the testimony being susceptible of more than one reasonable inference on this issue. This position is in accord with the ruling of the trial Judge, his Honor, Judge C.J. Ramage, and I agree with the same. In my opinion, the trial Judge properly submitted the issues to the jury, and committed no error in overruling defendant's motion for a directed verdict.
I wish to state further that I find no reversible error in the case. Therefore, I think the judgment of the lower Court should be sustained.