DocketNumber： 16683
Citation Numbers： 73 S.E.2d 449, 222 S.C. 407, 1952 S.C. LEXIS 48
Judges： Baker, Stukes, Fisi-Iburne, Taylor, Oxner
Filed Date： 11/12/1952
Status： Precedential
Modified Date： 10/19/2024
This action involves the right of an employee to sue another employee of an employer, subject to tire provisions of the Workmen’s Compensation Law of South Carolina, Code 1942 § 7035-1 et seq., for alleged wrongful acts of said employee in the performance of duties for their employer. The respondent, an employee of Consumer’s Brick Yard, was seriously burned and permanently injured when the boom of a crane operated by the appellant, another employee, came in contact with a high voltage electric line on the premises of the employer. While it is not made to appear in the complaint, answer or the order from which the appeal was taken, it appears in the “Statement” in the transcript of record that the respondent has already collected his Workmen’s Compensation claim from the employer.
Respondent’s complaint is for damages in the amount of Twenty Thousand ($20,000.00) Dollars, and for declaratory judgment, under Section 850-1, Code of 1942, as amended in 1948, Act April 7, 1948, 45 St. at Large, p. 2014, to the effect that, although both he and the appellant were working for an employer covered by the Workmen’s Compensation Law of this State, he is entitled to sue and recover damages at common law from the appellant by reason of the alleged negligent and wilful acts of the appellant.
An order was made by the Circuit Judge to the effect that respondent was not precluded by Section 7035-10 of the Law from suing the appellant; and permitting the respondent to proceed with his action for damages. This appeal followed.
Prior to entering upon a discussion of the issue before this Court, we deem it proper to state that counsel for Carolina Power & Light Company, owner of the electric line referred to in the complaint were, by order of this Court, permitted to file a brief and make an argument, as amici curiae. It appears in their motion to dismiss that the appellant was the foreman, and not merely a fellow servant of respondent, but in the view that we take of the case, this is not material. It was also called to our attention that the Circuit Court of Appeals for the Fourth Circuit has construed the aforementioned section of our Workmen’s Compensation Law. Since we are in accord with that Court’s construction thereof, we will make no further reference thereto except to cite the opinion. See Burns v. Carolina Power & Light Company, 193 F. (2d) 525.
We shall confine ourselves to a consideration of the pertinent section, 7035-10, Code of 1942, of our Workmen’s Compensation Law, which reads as follow:
“Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those con
The particular language in this section to which our attention is directed is that which limits recovery by an employee from an employer covered under the Law, “or those conducting his business” to compensation provided by the Act. Does the phrase “those conducting his (employer’s) business” preclude a covered employee from suing another employee for injuries growing out of and in the course of the employer’s business? Or adopting the “Question Involved” as stated by appellant and respondent in their respective briefs, “Does the phrase ‘or those conducting his business’ as used in Section 7035-10 of the South Carolina Workmen’s Compensation Law bar common law actions by an employee against a fellow employee as a negligent third party?”
There is a wide variance in the provisions of the Compensation Acts of the several states. The South Carolina Act is the same as the North Carolina Act in so far as the provision here involved is concerned. The Virginia Act also contains the same provision. While this Court is in no sense bound by the construction of similar Acts by the courts of another state, we may well be moved to adopt the construction placed upon such Acts by such courts when we are impressed with the logic and reasonableness of their conclusions, especially when, as here, this Court has not construed same. And, as stated in McDowell v. Stilley Plywood Co., 210 S. C. 173, 181, 41 S. E. (2d) 872, 876, “Our Workmen’s Compensation Act having been fashioned to the North Carolina Workmen’s Compensation Act, and practically a copy thereof, the opinions of the Supreme Court of that State construing such Act are entitled to great respect.” Because the opinion so effectively deals with the contentions raised by the parties to this action, as well as with its own prior decisions, and the decisions of
“We find a diversity of opinion with respect to the remedies against third parties for injuries to employees who are subject to the provisions of compensation acts due to the variances in such provisions. 58 Am. Jur., Workmen’s Compensation, section 60, page 616. In such acts where there is no immunity clause, such as we have in G. S. § 97-9, fellow workmen are generally treated as third parties within the meaning of the act. See Anno. 106 A. L. R. 1059.
“However, with the exception of the decisions in Tscheiller v. National Weaving Co., 214 N. C. 449, 199 S. E. 623, and McCune v. Rhodes-Rhyne Manufacturing Co., 217 N. C. 351, 8 S. E. (2d) 219, we find no decision in this or any other jurisdiction where, under an immunity clause similar to that contained in G. S. § 97-9, it has been held that an injured employee may maintain an action at common law against a fellow'employee who was responsible for his injury.
“In the Tscheiller case, while the motion was made to dismiss the action on the ground that all the parties thereto were bound by the provisions of the Workmen’s Compensation Act, the immunity provision in the statute with respect to the individual defendant was not raised. Neither was it raised in the McCune case where the court entered a judgment of involuntary nonsuit as to the defendant corporation and the plaintiff submitted to a voluntary nonsuit as to the individual defendant.
“But, in the case of Essick v. City of Lexington, 232 N. C. 200, 60 S. E. (2d) 106, the provision giving immunity to the employer ‘or those conducting his business’, contained in G. S. § 97-9, where the employer had accepted the provisions of the Workmen’s Compensation Act, was expressly presented for construction by this Court.
“We hold that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation, and whose acts are such as to render the corporation liable therefor, is among those conducting the business of the corporation, within the purview of G. S. § 97-9, and entitled to the immunity it gives; Essick v. City of Lexington, supra; Peet v. Mills, supra; Hade v. Simmons, 132 Minn. 344, 157 N. W. 506; Rosenberger v. L’Archer, supra; and that the provision in G. S. § 97-10 which gives the injured employee or his personal representative ‘a right to recover damages for such injury, loss of service, or death from any person other than the employer,’ means any other person or party who is a stranger to the employment but whose negligence contributed to the injury. And we further hold that such provision does not authorize the injured employee to maintain an action at common law against those conducting the business of the employer whose
“The plaintiff is relying on the cases of Tscheiller v. National Weaving Co., supra; McCune v. Rhodes-Rhyne Manufacturing Co., supra; and Morrow v. Hume, 131 Ohio St. 319, 3 N. E. (2d) 39.
“As to the Tscheiller and McCune cases, in so far as they are in conflict with the opinions in Essick v. City of Lexington, supra; Bass v. Ingold, supra; and this decision, they are to such extent modified. And while it is true, as contended by the plaintiff, that the facts in the case of Morrow v. Hume, supra, are similar to those presented on this record, it must be kept in mind that the compensation law of Ohio contains no immunity clause similar to that contained in G. S. § 97-9 of our act. The Workmen’s Compensation Law of Ohio, by Adams and Edwards (1930) ; Workmen’s Compensation Statutes, Schneider, Volume 4, section 1465-70, page 3021; Feitig v. Chalkley, supra.”
AVe find ourselves in accord with the interpretation by the North Carolina Court of the provisions of its Act, as applied to the same language in our Law, and conclude that the language “those conducting his (the employer’s) business” should be construed to include any person who, as an employee of a covered employer, was performing any work incident to the employer’s business, re
We are not impressed with a distinction, which appears in some of the cases, that the exemption from suit extends only to those employees engaged in managerial capacities, leaving a covered employee free to sue another employee who happens to be doing the same or a similar kind of work. We do not believe that the legislature intended to exempt high placed employees, and leave the low wage earner subject to liability to his co-employees especially where the act of the employee, in whatever capacity, would render the employer liable at common law.
The foregoing conclusion seems to be in harmony with the cases in states where Workmen’s Compensation Acts contain provisions similar to our Act. See cases cited in Warner v. Leder, supra.
The North Carolina cases relied upon by the Circuit Judge are distinguished and modified by that Court in the Warner case. The Georgia case of Hotel Equipment Co., v. Liddell, 32 Ga. App. 590, 124 S. E. 92, bears no factual similarity as will be seen by a reading of same, nor does the Georgia Act contain, so far as we are advised, a phrase comparable to “or those conducting his business.”
We therefore construe Section 7035-10 as follows: An employee, subject with his employer to the provisions of the Workmen’s Compensation Act of this state, whose injury arises out of, and in the course of his employment, cannot maintain an action at common law against his co-employee, whose negligence caused the injury. This conclusion renders unnecessary a consideration of other questions raised in the brief of amici curiae.
The order appealed from is reversed, and the complaint dismissed.