I am unable to concur in the opinion of Mr. Justice Stukes in which it is stated: "It was said in the Stewart case, supra[Stewart v. McLellan's Stores Company, et al., 194 S.C. 50,9 S.E.2d 35], that it might be conceded in the consideration of that case that if an employee suffer an injury in the course of his employment at the hands of a fellow workman, it would be an accident; and again in the order denying a rehearing that it might be argued that such would fall within the Compensation Act. Thus we do not think the case is authority here; it is applicable to a willful assault by an employer."
In connection with the foregoing reference to the case ofStewart v. McLellan's Stores Company [194 S.C. 50,9 S.E.2d 37], the opinion in which was concurred in by all members of the Court, the practical question was this:
"* * * If an employer commits an assault and battery upon an employee and no physical disability follows which would entitle the employer to compensation under the Act, is the employee debarred of bringing action at common law?
* * * * * "`A compensation act that is compulsory or that has been accepted by both employer and employee excludes other remediesonly when conditions existing in a particular case havebrought it within the terms of the Act. The mere fact that the employer and the employee are subject to the act does not deprive them of their common law remedies if conditions in the case place it outside the scope of the act, as, for example, where the injury suffered was not caused by an accident, or *Page 315 did not result in disability; nor will the action at law be dismissed * * *.' [Emphasis added]. 71 C.J., Section 1489, page 1482."
The complaint in the present case does not show that the plaintiff suffered any physical injury that resulted in his disability, or which prevented his doing his ordinary work. In fact, it simply shows a simple assault and battery, which however outrageous it may have been, does not bring him within the purview of the Workmen's Compensation Act.
Quoting further from the case of Stewart v. McLellan'sStores Company, supra, this Court said at page 54 of 194 S.C. at page 37 of 9 S.E.2d:
"The Act of South Carolina No. 610, found in the Acts of the General Assembly of 1936, Act July 17, 1935, 39 St. at Large, p. 1231, contains Section 31, the title of which is `Schedule of Disability for Certain Injuries.' There is provision under subsections (a) to (t), inclusive, stating the nature of the injuries and the amounts of disability which lie from the loss of a thumb down to and including every other physical disability to subsection (t), which provides for the loss of the vision of an eye and for the serious facial and head disfigurement. It nowhere provides for an injury which leaves no physical disability or loss. Section 29 provides: `Where the incapacity for work resulting from the injury is total, the employer shall pay,' etc. Section 30 provides: `Except as otherwise provided in the next section hereafter, where the incapacity for work resulting from the injury is partial, the employer shall pay,' etc.
"It is apparent from these provisions that where no physical disability has been suffered by the claimant there is no ground for action under the Workmen's Compensation Act. In this present case, upon what ground would the commission award compensation to the claimant?"
How would the commission arrive at compensation to the claimant in this case. The complaint does not show that the plaintiff lost any time from his labor, or that he has lost any money. It does not show that he has paid out any money *Page 316 for doctors' bills or medicines or hospital expenses. The commission could not consider the question of punitive damages, and I am unable to see upon what grounds it would award him compensation.
Without arguing the case further, it seems to me that the trial Court was correct. His Honor's decision was based upon a motion to strike from the answer the allegation that the parties were bound by the terms of the Workmen's Compensation Act.
In order to maintain an action under the Workmen's Compensation Act, the complaint must state facts which bring it within the terms of the Act, which the complaint in this case does not do.
For this reason I think the judgment below should be affirmed.