This аppeal comes to this Court from an order of the Resident Judge of the Twelfth Judicial Circuit, dated February 9, 1950, affirming an opinion and award of the South Carolina Industrial Commission, dated March 7, 1949, wherein claimant was denied compensation for injuries sustained by him which were alleged to have arisen out of and in the course of his employment.
From this order, exceptions were taken which present the question of whether or not the injuries received by appellant were the result of an accident which arose out of and in the course of his employment, appellant contending that *76 under the facts, as found by the Industrial Commission, claimant is entitled to compensation as a matter of law.
The testimony reveals that three persons were employed by respondent in its paint and body repair'shop at the time in question and for several mоnths prior thereto. The foreman having been discharged some time prior to the accident, an arrangement had been entered into whereby the three employees were to work together, with Mr. W. O. Turner being in charge of repair orders and parceling out the work equally so that one would not be called upon to do more than his share of the work. This arrangement was to be in force unless the manager should сall upon one of the employees to do some specific job.
A Florence, South Carolina, Police car was brought in some two or three days prior to the accident and turned over to Mr. Turner by Mr. Smith, the Manager, with instructions to weld the holes in the body where the radio aerial had been previously installed and had at that time been removed, and to have the police signs removed from the doors. Turner assigned this work to one of the employees named B. G. Game, who was engaged in this operation at the time claimant was injured.
On June 3, 1948, the day in question, claimant, having no work assigned to him by his employer, had been idle all day and at about 4 p. m. was sitting in the front seat of the car on which Game was working, when he took from the glove compartment a tear gas bomb. Not knowing what the object was, he pulled the cotter pin, thereby releasing the contents of the bomb, which he then threw to the floor where it exploded, as a result of which the tear gas injured claimant’s eyes and impaired his sight.
The Plearing Commissioner found that “Jordan was undoubtedly on the job at the time of the accident in the sense that it was during his work hours and at a time his employer could command his services, but a careful and painstaking consideration of the entire record convinces me thаt *77 he had no duties to perform in or about the Chevrolet Police car at the time of the injury, and that his handling of the tear gas bomb was merely tO' pass the time and his pulling of the cotter pin thereof was in pursuit of natural curiosity which resulted so unfortunately to himself.”
The case therefore falls within that class of cases where one, while awaiting a work assignment during working hours at his place of employment in idle curiosity tampers with a strange object which is present by reason of the nature of the employer’s business, is injured, bearing in mind that negligence and contributory negligence are of no consequence in Workmen’s Compensation cases.
Allsep v. Daniel Construction Co.,
216 S. C. 268,
An injury may be regarded as arising out of the employment if it resulted from a risk or danger to which the workman was exposed by reason of being engaged in the performance of his duties although such risk or danger was not inhеrent in and not necessarily essential to the activities of the employment.
Upon admitted or established facts the question of whether an accident is compensable is a question of law and this is not an invasion of the fact-finding field of the Commission on the part of the Court. In the instant case, however, the findings of fact are accepted.
Marley v. Orval P. Johnson Co.,
It is pbvious in the instant case that without the employment the injury would not have oсcurred, as it arose from a danger which was part of the work environment and not common to the neighborhood. Eargle
v. South Carolina Electric & Gas Co.,
205 S. C. 423,
This being the first “curiosity” case to come before this Court, we have looked to other jurisdictions for guidance and quote quite extensively therefrom.
*78
The case of
Bernier v. Greenville Mills,
1944, 93 N. H. 165,
In
Derby v. International Salt Co.,
In
Pedersen v. Nelson,
1944,
Frequently quoted in our decisions and by other courts has been the early (1913) Massachusetts McNicol’s case, cited as
Re Employers’ Liability Assurance Corporation,
Comment upon Caswell’s case is found in 3 NACCA Taw Journal 39, as follows: “This case is a landmark in Massachusetts law as it avoided the paralyzing effect of the earlier decision in McNicol’s case requiring ‘peculiar’ exposure, and deinial of compensation for common risks.” That author further says on the same page: “Under such a broad definition, as well as under narrower rules, it is not *80 necessary that the injury be one which ought to have been foreseen or expected. Even unusual or extraordinary consequences of the employment may well be compensable. The risk insured is not only the foreseeable one, but the risk which, after the event, can be seen to have its origin in the nature, conditions, obligatidhs, or incidents of the employment.”
“A slight deviation, caused by curiosity or other natural human act, is not necessarily a bar to compensation. Although the older cases used the strict cоmmon-law theories to bar even compensation claims, the modern theory is to permit an award where an instrumentality of the employer, or a risk incidental to the employment, in fact combined with the act of curiosity or other reasonably natural acts, and produced the injury. Furthermore, the defense of ‘deviation’ or ‘curiosity’ is borrowed from the common law, and workmen’s compensation meant to discаrd narrow common-law theories. The defense, therefore, should rarely be upheld and must be limited to acts so foreign to the employment (used in its widest sense) as not to ‘arise out of’ even a reasonable incident thereof.” 4 NACCA Law Journal 23.
The footnote citations supporting the foregoing are here reproduced as a matter of convenience to those interested in this subject: “See excellent disсussion by Chestnut, J., in
Bethleheim Steel Co. v. Parker,
Simon v. Standard Oil Co.,
The reasoning of the Court in affirming the award and the valuable review of the leading authorities can best be partially presented by the following excerpts from the opinion :
“The question of law whether liability exists in this case is, I think, a close one, The ánswer to it depends largely on the underlying philоsophy as to the purpose and scope of the Longshoremen’s Act. In general it follows the pattern of State Workmen’s Compensation Acts but more particularly its phraseology was taken from the New York Act * * *. It frequently has been judicially said that the Act is to be liberally construed in favor of the injured employee or his dependent family. * * *
“The precise legal question presented is whether the employee’s injuries arose ‘out of and in the course of employment’. There is no difficulty in finding that the injury arose ‘in the course of employment’; but the question is whether it arose ‘out of’ her employment. As I have indicated, the proper application of this phrase in the statute to the facts of this case depends very largely upon the judicial concept of the purpose and scope - of the statute as a wholе. These compensation statutes constitute a substituted remedy for those which an injured employee had at common law, based primarily on negligence of the employer and subject to be defeated by contributory negligence of the employee, and the very well-known defenses of the fellow servant doctrine and the assumption of risk. This fundamental conception of liability was changed by the statute which еxpressly provides that ‘compensation shall be payable irrespective of fault as a cause for the injury’. Section 904(b).
“The purpose of the statute was well expressed by Judge Parker for this Circuit in the comparatively recent case of Wheeling Corrugating Co. v. McManigal, supra [4 Cir.],41 F. (2d) [593] at page 595 : ‘Its purpose is to extend to the *83 workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient fictions of the law, but upon the principles of industrial insurance in application of the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne, not by the individual worker, but by the industry in which he is engaged.’
“The phrase ‘out of’ and ‘in the course of’ employment-was familiar in the common law relation of master and servant, possibly more frequently expressed as ‘scope of employment’. See 39 C. J. 278. It is, therefore, perhaps not surprising that in the earlier cases dealing with a similar phraseology in compensation statutes, the courts leaned very heavily upon the appliсation which had been judicially previously given to the phrase in the common law cases. But the trend of judicial opinion in recent years has been very disstinctly away from this earlier conception of the scope and purpose of Compensation Acts. * * * In applying the phrase ‘out of’ employment, the later cases emphasize the importance of the working and environmental conditions. In many сases the injuries are held compensable where the precise cause of the accident is incidental thereto although not strictly relevant to the performance of any duty by the employee. * * *
“In the instant case it is clear enough that the immediate cause of the employee’s injury was due to her action in looking up the dumb waiter shaft; and that in doing so she was not performing any duty that was required by her or еven relevant to her employment as a ‘burner’ on the upper deck of the ship. It would'follow, therefore, if one follows the lines of the earlier cases with their narrow and technical construction of the phrase ‘out of’, the particular injury *84 would not be compensable. But it is also clear on the facts that her action was not in any sense a striking or intentional departure from her duties but at most a slight and casuаl one occasioned apparently by not unnatural curiosity on her part to- see something which attracted her in her unusual environment arising in the course of her general duty to return to her work on the upper deck. The facts found by the Deputy Commissioner exclude any knowledge or even suspicion on her part that her casual action was or would be accompanied by any likelihood of danger to hеrself or to any one else. It is clear, therefore, she was not within the special exception in the statute which has been above quoted.
“The point against liability most strongly urged by counsel for the employer is that the injury was directly attributable merely to ‘curiosity’ on the part of the employee. His brief reviews a number of decisions to the effect that injuries resulting from mere curiosity on the part of the employeе are noncompensable. Typical of such cases are
Saucier’s case,
“In this latter case the award of compensation was sustained despite the fact that the employe’s accidental injury was caused by his doing something from mere curiosity. And
Derby v. International Salt Co., Inc.,
“It is unnecessary to attempt a meticulous review of the hundreds of cases in the federal and state courts under these numerous compensation statutes. It is sufficient to- say that hardly any two cases are precisely alike on the facts and there is no certain and uniform rule to be deduced from the many decisions of many courts dealing with the subject. Circuit Judge Rutledge (now Mr. Justice Rutledge of the Supreme Court) has been at pains to classify many of these cases in Hartford Accident & Indemnity Co. v. Cardillo, supra [72 Aрp. D. C. 52, 112 F. (2d) 11]. The philosophy of the decision in that case is, I think, in accord with the modern tendency of the decisions upon the subject. He said in generalizing about the scope and purpose of the act (112 F. (2d) at page 17) : 'The provision is: “No- compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.” This provision, reinforced by the statutory presumptions and the Act’s fundamental policy in departing from fault as the basis of liability and of defense, except as specified, is inconsistent with any notion that recovery is barred by misconduct which amounts to no more than temporary lapse from duty, conduct immediately irrelevant to the job, contributory negligence, fault, illegality, etc., unless it amounts to the kind and degreе of misconduct prescribed in definite terms by the Act. It is entirely inconsistent with reading into the statute the law of tort causation and defense, where liability is predicated on fault and nullified by contributory fault. We are committed by the statutes and our previous de *86 cisions against the test of immediate relevancy of the precipitating act to the task in hand.’
“With this understanding of the purpose and scope of the statute, I conclude that the facts of the case malee the employee’s injuries compensable. Even treating the case as a doubtful one, that doubt should be resolved in favor of the employee. It is true that to be within the coverage of the Act it must be found that her injuries arose ‘out of’ her employment; but it is not.necessary that her immediate action which precipitated her injury should have been directly relevant to her gеneral work. Her action in looking into the dumb waiter shaft was doubtless a thoughtless and casual one but not accompanied by any sense of danger to herself, and clearly not a willful act to inflict injury upon herself or another. Although apparently prompted by curiosity. I think it may be properly classified as an action which was occasioned by and incidental to her environment.”
The Circuit Judge, feeling that he was bound by the finding's of the fact-finding body, which is well-established law, affirmed the findings of the Industrial Commission, but we are of the opinion that, under the facts as heretofore determined, the claimant is entitled to compensation as a matter of law and that the order appealed from should be reversed, the case remanded to the Circuit Court with instructions that it be remanded to the Industrial Commission for the purpose of making an award commensurate with claimant’s injuries, and it is so ordered.