February 21, 1946. This appeal is from an order of Honorable T.S. Sease, Circuit Judge, affirming an award of the Industrial Commission. The "Statement of Issues," as alleged by the appellants and adopted by the respondent, follows:
"Where an employee, engaged in `rounding up' a sand pile for his employer, stops his work and asks a passerby for a cigarette and is struck by such person and falls as a result, is his injury so sustained compensable under the South Carolina Workmen's Compensation Act as:
(a) Arising out of his employment; and
(b) Arising in the course of his employment?"
Respondent was employed by Monarch Mills as a laborer, and on January 5, 1944, he and a number of other laborers were engaged in "rounding up" a sand pile where the sand had become scattered in the course of pouring concrete. Among the laborers engaged in rounding up the sand pile with respondent was a negro by the name of Tom Grier. Respondent asked him for a cigarette and about the time that Grier told the respondent he had no cigarette, another negro, John Lee (nicknamed Suber) Davis was passing the sand pile, and respondent, who had already stopped shoveling, grounded his shovel and asked Davis (or Suber) for a cigarette. Davis, or Suber, as he is more frequently referred to, had no connection whatever with the work in which respondent and the others at the sand pile were engaged. He worked up in the mill, gathering waste — would go to the waste house and get sacks and come back into the mill and get the waste up; and simply happened to be passing near the sand pile at the time respondent asked Grier for a cigarette.
While the testimony of all of the witnesses who were present and described what then and there occurred was different in detail from that of the respondent, yet if there is any evidence on which the Industrial Commission could reasonably rest its award, the Circuit Court and this Court *Page 89 is bound by its finding of fact. We will report the respondent's version:
"Q. Tell the Commissioner what happened to you while you were out there working.
"A. Well, we was rounding up the sand pile and I asked Tom Grier for a cigarette —
"The Court: Asked who?
"A. Tom Grier, and he started to give me one and I looked back and seen this other boy, and Tom said he did not have a cigarette and I said `well, never mind, I'll get one from this boy,' and I said `come here, boy' and he come up behind me then, and I stopped shoveling and set the shovel down, holding the handle and I said `give me a cigarette,' and about that time he hit me in the back, run into me and knocked me down and fell on me and I broke my leg, when he run into me I sort of spun around and fell and he fell on me. I had rech out for a cigarette and his knocked my hand sorter like this (Demonstrating) and he run into it and that is what spun me around and made me fall. And when I done that I broke my leg.
"The Court: What did he do when he came up to your back?
"A. Well, I seen him coming, and I had reached my hand around like this and asked him for a cigarette and he just run into my hand and that spun me around and made me fall and break my leg.
"Q. Did he fall on top of you?
"A. Yes, sir.
"Q. Did you have the shovel in your hand at that time?
"A. I had set it down and was holding it by the handle.
"Q. Did you say anything to him?
"A. I said `boy, you done broke my leg'.
"Q. Did you say anything to him before he pushed or shoved you — had you had any words with him of any kind?
"A. No, sir."
Immediately following the foregoing testimony, the respondent testified that it was drizzling rain and the ground *Page 90 was slippery and muddy. However, neither the Hearing Commissioner nor the Full Commission found as a fact that the slippery condition of the ground around the sand pile had anything to do with respondent falling, so this testimony may be disregarded. Incidentally, the testimony of the other witnesses fails to disclose any such condition, the witness Grier denying, when cross examined by respondent's counsel, that the ground was wet, or that there had been more than a sprinkle of rain, if that, although it was cloudy.
Further on in respondent's testimony and on cross examination, he testified as follows:
"Q. And while he (Uncle Tom) was getting his tobacco out, you told Uncle Tom `here Suber comes, I'll get one from him.
"A. Yes, sir.
"Q. And you turned around to get it.
"A. I didn't see him when he got right close to me, I started to reach around for the cigarette, and I had my shovel in my hand holding it, I had set it down, you know, and he run into me and hit my arm and turned me around sorter across this way and I fell and broke my leg.
"Q. So, instead of handing you the cigarette, he just ran into your arm?
"A. Kinder across my shovel like and that spun me around and I fell, I wasn't expecting nothing like that.
"Q. What spun you around was him hitting your arm?
"A. Yes, sir.
"Q. You were getting along all right with your work if it hadn't been for him hitting you, even if it was drizzling rain, and spinning you around, if it hadn't been for that you never would have fallen, would you?
"A. No, sir."
Accepting, in passing on this appeal, respondent's version of how his injury occurred as substantially true, is his injury compensable under our Workmen's Compensation Act? For it to be compensable, the injury would have to arise out of and in the course of respondent's employment. *Page 91
In Branch v. Pacific Mills, 205 S.C. 353,32 S.E.2d 1, and Eargle v. South Carolina Electric Gas Company,205 S.C. 423, 32 S.E.2d 240, it is held that "the two parts of the phrase `arising out of and in the course of the employment' are not synonymous, and both must exist simultaneously before any Court will allow recovery under a Compensation Act so worded. `Arising out of' refers to the origin and cause of the injury, whereas `in the course of' refers to the time, place and circumstances of the occurrence."
There is no dispute that the respondent's injury occurred on the premises of his employer, at the place where he had been assigned to work and during his work hours, but as to the "circumstances," and "the origin and cause of his injury," it appears to us that the respondent is met with insurmountable difficulties. We will consider these together.
At the time of respondent's injury, he had stopped shoveling (the work he was employed to do) for the purpose of procuring a cigarette for his personal pleasure from Davis who was passing near where he was working. Davis had no connection with the labor at the sand pile, but as aforesaid was merely passing by in connection with work he had been assigned to perform. There is not a scintilla of testimony that anything that occurred between respondent and Davis related even remotely to the work that either was then or had been engaged in during their respective employments by the appellant, Monarch Mills. In other words, there was not the slightest connection between their work and the "horseplay" in which Davis engaged immediately following the request made to him for a cigarette, and resulting in the respondent's leg being broken. Even if the harsh inference be drawn that Davis assaulted the respondent merely because he had asked him for a cigarette, yet there is nothing in the testimony that this could be accounted for by any differences which had theretofore arisen between them concerning the work or interest of Monarch Mills, and certainly not as to the labor that either was then performing. *Page 92
In Lanford v. Clinton Cotton Mills, 204 S.C. 423,30 S.E.2d 36, compensation was allowed the claimant for injuries sustained from an assault by a fellow employee because the origin of the assault was a controversy between the claimant and the assaulting employee over the repair of crankshafts for their employer. And in Thompson v. J.A.Jones Construction Company, 199 S.C. 304,19 S.E.2d 226, another assault case, it was held to be within the Act because the assault had as its origin a difficulty over the doing of the employer's work. In so holding, Mr. Justice Stukes, writing the opinion of the Court, stated:
"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)."
But this case is governed by the case of Elrod v. UnionBleachery et al., reported in 204 S.C. 481,30 S.E.2d 73. There the evidence showed that the injury occurred while the deceased employee was doing his work and, therefore, arose during the course of his employment, but the evidence also showed that the difficulty between the two men arose out of a matter totally disconnected with the work of the employer. In reversing the Circuit Court in affirming an award by the Industrial Commission, this Court did not hold that the employer and its insurance carrier had sustained any burden of proof to affirmatively show that the death of the assaulted employee arose from some other cause than that of the employment, but that the claimants had failed to show a case falling within the terms of the Act, the Court, through Mr. Justice Taylor as its organ, saying: *Page 93
"In the instant case there is no evidence to show that the injury and death of Harry Elrod arose out of his employment, therefore this exception is sustained.
"Since a causal connection is found not to exist between the injury of and death of Harry Elrod and his employment by the Union Bleachery, it is unnecessary to consider the other exceptions."
The opinion in the case of Mack et al. v. Branch No. 12,Post Exchange, Fort Jackson et al., ___ S.C. ___,35 S.E.2d 838, was filed after this case was submitted on printed briefs, and hence was not discussed. However, the only similarity between the cases is the fact that the employee, while on the premises of the employer, desired to smoke.
In the instant case, the claimant's accident was not due to anything connected with smoking but to an independent act of a third party. Claimant's desire to smoke was merely an incidental circumstance, the proximate cause of his injury being the act of the passerby. The fact that the party who caused his injury was another employee does not alter the principle involved. Suppose this passerby or other employee became insulted because claimant asked him for a cigarette or because claimant undertook to reach in his pocket and procure a cigarette without his permission and that an assault grew out of the request for an attempt to thus procure a cigarette from the passerby, it could not be soundly held that such difficulty grew out of the employment. The respondent's injuries were not proximately caused by his request for a cigarette or attempt to procure a cigarette, but the proximate cause of his injuries was the unexpected and unforeseen act of a passerby or a fellow employee in hitting him or shoving him. Therefore, by no stretch of the imagination can it be said that the respondent's injuries arose out of his employment.
There being no evidence to support the finding of fact by the Industrial Commission that the accident to the respondent *Page 94 arose out of and in the scope of his employment, which finding was affirmed by the Circuit Court, the order of the Circuit Court is reversed, and the case remanded for entry of judgment for the appellants.
MESSRS. ASSOCIATE JUSTICES FISHBURNE and OXNER concur.
MESSRS. ASSOCIATE JUSTICES STUKES and TAYLOR dissent.
MR. ASSOCIATE JUSTICE STUKES (dissenting):