Opinion
16441
December 6, 1950.
Messrs. C.T. Graydon and John Grimball, of Columbia, for Appellant, cite: As to accident in which appellant was injured arising out of and in the course of his employment: 199 S.C. 304, 19 S.E.2d 226; 205 S.C. 423, 429, 32 S.E.2d 240, 242; 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245; 222 N.Y. 382, 118 N.E. 805, 7 A.L.R. 1075; 321 Mass. 705, 75 N.E.2d 433; 320 Mass. 419, 69 N.E.2d 673; 316 Mass. 332, 55 N.E.2d 611; 305 Mass. 500, 26 N.E.2d 328; 78 Ga. 248, 50 S.E.2d 370; 204 N.C. 163, 167 S.E. 695; 168 Wis. 436, 170 N.W. 285; 142 Or. 252, 20 P.2d 229; 92 Utah 129, 66 P.2d 144; 216 Iowa 894, 249 N.W. 408; 166 Minn. 251, 207 N.W. 636; 289 Ky. 102, 182 S.W.2d 20; 135 P.2d 644; 216 Mass. 51, 102 N.E. 932, Ann. Cas. 1915A 737; 104 Kan. 432, 179 P. 372, 6 A.L.R. 1145. As to the injury to the appellant occurring at a time when he was acting within the scope of his employment: 207 S.C. 433, 36 S.E.2d 297; Horovitz on Workmen's Compensation 171; 71 C.J. 658, et seq.; 86 S.C. 435, 68 S.E. 643, 645; 198 S.C. 49, 16 S.E.2d 289. 294; 71 C.J. 667.
Messrs. John M. Daniel, Attorney General, and T.C. Callison, R. Hoke Robinson, James S. Verner, and Daniel R. McLeod, Assistant Attorneys General, all of Columbia, for Respondents, cite: As to the findings of fact by the Industrial Commission, concurred in by the circuit judge, being conclusive when supported by ample evidence as in instant case: 207 S.C. 433, 440, 36 S.E.2d 297; 189 S.C. 188, 200 S.E. 727; 188 S.C. 393, 199 S.E. 530; 209 S.C. 463, 40 S.E.2d 681; 208 S.C. 53, 37 S.E.2d 269. As to claimant's accident not arising out of and in the course of his employment: 207 S.C. 119, 32 S.E.2d 11; 18 N.J.M. 339, 13 A.2d 498; 322 Mass. 328, 77 N.E. 308; 212 N.C. 100, 193 S.E. 294; 111 Conn. 365, 150 A. 110, 69 A.L.R. 856; 151 Pa. Sup. 293, 30 A.2d 214, 216. As to the question as to whether or not an accident arose out of and in the course of the employment being a mixed question of law and fact: 205 S.C. 433, 32 S.E.2d 365; 207 S.C. 433, 440, 36 S.E.2d 297; 215 S.C. 357, 55 S.E.2d 285.
December 6, 1950.
This appeal is from an order of the Court of Common Pleas affirming the refusal of the Industrial Commission to award workmen's compensation. Appellant was a laborer and handy man at the municipal water plant of Columbia. On the second or third day of a two weeks' vacation he returned to the plant in order, he said, to obtain permission of his employer to leave the city. He found other employees gathering nuts from a pecan tree on the premises and joined them. He climbed the tree and fell, sustaining serious injuries. The plant superintendent permitted the employees to gather the nuts at off-hours and keep them for themselves. This was done to remove temptation from trespassing children who would otherwise be attracted to the tree and incidentally pollute a nearby reservoir.
The commission and the court on appeal declined claim for compensation upon the ground that the injury did not arise out of and in the course of the employment. Code sec. 7035 (f). The relevant finding of fact by the hearing commissioner, which was affirmed on review by the commission, follows: "That the accident sustained by the claimant on October 28th 1947 did not arise out of and in the course of his employment; that the claimant was on vacation and had not been instructed to return to work on said date."
The evidence upon which the foregoing was founded has been carefully considered and amply supports it; no useful purpose would be served by restatement here. There was some conflict which makes applicable the following quotation from 58 Am. Jur. 872, 873, Workmen's Compensation, sec. 461: "Generally speaking, the question whether an injury arose out of or in the course of the employment is one of law where the facts are admitted, and one of fact where the evidence is conflicting." Therefore, the lower court did not err in refusing to reverse the conclusion of the fact-finding body, which is binding. Code sec. 7035-63. S.C. cases in 34 South Eastern Digest, Part 2, page 845 et seq., Workmen's Compensation, Par. 1939. In contrast, the question of whether the injury arose out of the employment became one of law in Jordan v. Dixie Chevrolet, S.C. 1950, 61 S.E.2d 654, as will be seen by reference to it.
Ordinarily an employee while on vacation is naturally and logically not within the protection of the workmen's compensation law. No text or decision contrary to this generalization has been cited, and we know of none. The facts of the case in hand do not bring it within the rule relied upon by the appellant and illustrated by the decisions contained in the annotation in 7 A.L.R. 1078 entitled, "Injuries received while performing service for employer before or after hours as arising out of and in the course of employment."
The exceptions are overruled and the judgment affirmed.
BAKER, C.J. and FISHBURNE, TAYLOR, and OXNER, JJ., concur.