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Davis Adv. Sh. No. 6
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

    Harold P. Baggott,         Petitioner,

        v.

    Southern Music, Inc.,

    and The Travelers

    Insurance Company,         Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Orangeburg County

Charles W. Whetstone, Jr., Judge

Opinion No. 24759

Heard December 2, 1997 - Filed February 9, 1998

REVERSED

        BURNETT, A.J.: In this workers' compensation case, the single

commissioner awarded Petitioner Harold P. Baggott (claimant) benefits; the

full Workers' Compensation Commission reversed in a two to one decision.

The circuit court reversed the full commission, reinstating claimant's

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benefits. The Court of Appeals reversed, finding there was substantial

evidence to support the decision of the full commission denying claimant

benefits. Baggott v. Southern Music, Inc., et al., Op. No. 96-UP-312 (S.C.

Ct. App. filed September 23, 1996). We reverse.

FACTS

        Southern Music, Inc. (SMI), is a business which, in part, leases coin

operated game machines. SMI also leases Tiny's Tub, a pool hall and bar,

to John Rudder. SMI owns the game machines and pool tables in Tiny's

Tub.

        Claimant is the manager of SMI. His typical hours are from 9 a.m.

to 5 p.m., although he remains on call to service machines.

        While at SMI on a Friday, claimant received a message late in the

afternoon from Rudder; Rudder requested quarters and repair of a jukebox.

Responding to the request, claimant went to Tiny's Tub between 6:00 and

6:30 p.m., delivered the quarters, and repaired the jukebox and a pool

table. When he completed his work, he began to play a game of pool with

a friend and to drink a beer.

        According to claimant, Kenny McDowell, claimant's fellow employee,

entered the bar, angrily cursing at claimant about a work-related matter.

McDowell stated to claimant, "you almost got my son killed. You turned

on the alarm."1 Claimant testified McDowell "came at him." Although

claimant attempted to defend himself with a pool cue, McDowell assaulted

claimant. Claimant suffered a broken hip.

        McDowell testified he went to Tiny's Tub to tell claimant the security

alarm was off. He told claimant his son was almost shot because the

alarm had been engaged. McDowell admitted he was "rather upset."

McDowell testified claimant told him not to speak to him disrespectfully;

McDowell thought claimant was going to hit him with the pool cue so he

knocked it out of his hands. McDowell testified the men hit each other.

He believed claimant was the aggressor.

off, but, instead, claimant had mistakenly turned it on. When McDowell

and his son entered SMI, the silent alarm notified the sheriffs department.

A deputy sheriff responded, entered SMI, and pulled a gun on McDowell's

son.

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        Rudder testified claimant had come to Tiny's Tub, given him the

requested quarters, and began to repair the malfunctioning machine.

McDowell entered the bar, "yelling almost hysterically at [claimant] for

something." Rudder described McDowell's assault on claimant and stated

McDowell was the aggressor. Rudder hysically removed McDowell from

the building.

        A patron who witnessed the altercation testified claimant was playing

a game of pool when McDowell entered Tiny's Tub. McDowell screamed

claimant had almost gotten his son shot and advanced toward claimant,

stating he "ought to whip [claimant's] ___." Claimant attempted to defend

himself with a pool cue. McDowell threw claimant into the air. The

patron testified McDowell was the aggressor.

        An insurance adjustor spoke with claimant while he was in the

hospital. The adjustor testified claimant did not inform her he had gone to

Tiny's Tub to either deliver coins or to repair a machine.

        The full commission determined 1) claimant's injury was sustained

after his work duties had ended and 2) even if he did sustain a

compensable injury, he was barred from compensation because alcohol was

a contributing factor in the accident. The circuit court concluded the

dispute between McDowell and claimant was related to the business of

SMI and, therefore, claimant's injury did arise out of and in the course of

his employment. It further concluded there was no evidence alcohol

contributed to claimant's injury. The Court of Appeals held the circuit

court improperly substituted its view of the evidence for that of the full

commission. Id.

ISSUES

DISCUSSION

        A decision of the Workers' Compensation Com-mission will not be

overturned by a reviewing court unless it is clearly unsupported by

substantial evidence in the record. Howell v. Pacific Columbia Mills, 291

S.C. 469, 354 S.E.2d 384 (1986). Substantial evidence is evidence which,

considering the record as a whole, would allow reasonable minds to reach

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the conclusion that the administrative agency reached to justify its action.

Lark v. Bi-Lo Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). The general

policy is to construe the Workers' Compensation Act in favor of coverage

rather than exclusion. Fox v. Newberry County Memorial Hospital, 316

S.C. 537, 451 S.E.2d 28 (Ct. App. 1994), citing Davis v. South Carolina.

Dept. of Corrections, 289 S.C. 123, 345 S.E.2d 245 (1986).

I.

        To be compensable under the Workers' Compensation Act, an injury

by accident must both "arise out of" and "in the course of" employment.

S.C. Code Ann. § 42-1-160 (Supp. 1996). "Arising out of" refers to the

origin of the cause of the accident; "in the course of" refers to the time,

place, and circumstances under which the accident occurred. Owings v.

Anderson County Sheriff's Dept., 315 S.C. 297, 433 S.E.2d 869 (1993);

Eargle v. S.C. Electric & Gas Co., 205 S.C. 423, 32 S.E.2d 240 (1944). An

injury occurs in the course of employment "when it occurs within the

period of employment at a place where the employee reasonably may be in

the performance of his duties and while fulfilling those duties or engaged

in something incidental thereto." Beam v. State Workmen's Compensation

Fund, 261 S.C. 327, 331, 200 S.E.2d 83, 85 (1973). "[T]he two [terms] are

so entwined that they are usually considered together in the reported

cases; and a discussion of one of them involves the other." Eargle v. S.C.

Electric & Gas Co., 205 S.C. at 429, S.E.2d at 242.

        It cannot be disputed claimant's injury "arose out of" his employment

with SMI. The assault was the result of McDowell's anger toward

claimant in failing to disengage the security alarm at SMI. The dispute

had its origin in McDowell's and claimant's employment with SMI. Cf.

Skipper v. Southern Bell Telephone & Telegraph Co., 271 S.C. 152, 246

S.E.2d 94 (1978)(injury to employee assaulted by another employee growing

out of a quarrel about the employer's work arises out of the employment)

with Bridges v. Elite, Inc., 212 S.C. 514, 48 S.E.2d 497 (1948)(dispute

which culminates in an assault arising out of employee's private life is not

compensable); see also Sola v. Sunny Slope Farm, 244 S.C. 6, 10-11, 135

S.E.2d 321, 324 (1964)("[a]n accident arises out of the employment when it

arises because of it as when the employment is a contributing proximate

cause.").

        Claimant's injury also occurred "in the course of" his employment. It

is uncontroverted claimant performed employment-related duties at Tiny's

Tub. Immediately prior to the assault, claimant was not performing work-

related duties. However, when McDowell entered Tiny's Tub and

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confronted claimant about a work-related matter, claimant was compelled

to resume his work duties for SMI. McDowell then assaulted claimant.

Under these circumstances, claimant was injured while in the course of his

employment.2 Eargle v. S.C. Electric & Gas Co., supra (each case must be

decided on its particular facts and circumstances).

        The substantial evidence does not support the full commission's

conclusion claimant's injury did not arise out of and in the course of

employment. Instead, viewing the record as a whole, reasonable minds

would conclude claimant's injury did arise out of and in the scope of his

employment with SMI.

II.

        As noted above, the full commission also denied claimant benefits

because his "alcohol consumption was a contributing factor in the accident

and resulting injuries." Although we generally do not consider issues

which were not addressed by the Court of Appeals, we find it necessary to

do so here.

        South Carolina Code Ann. § 42-9-60 provides "[n]o compensation shall

be payable if the injury ... was occasioned by the intoxication of the

employee . . .". We have interpreted this provision as barring

compensation when the employee's intoxication is the proximate cause of

the injury. Kinsey v. Champion American Service Center, 268 S.C. 177,

232 S.E.2d 720 (1977).

        The only evidence in the record is that claimant had consumed a

portion of one beer when he was confronted by McDowell. There is no

evidence claimant was intoxicated or that his consumption of alcohol

proximately caused his injury. Accordingly, claimant is not barred from

recovery under the Workers' Compensation Act.

        The decision of the Court of Appeals is reversed and the order of the

circuit court remanding this matter to the Workers' Compensation

Commission for entry of an order awarding benefits is reinstated.

        FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.

where work-connected assaults occur outside working hours where "course

of employment" is virtually nonexistent, court should consider strength of

causal connection between injury and employment).

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