Boykin Ex Rel. Estate of Boykin v. Prioleau Ex Rel. Estate of Dickerson

179 S.E.2d 599, 255 S.C. 437, 1971 S.C. LEXIS 380

• Court: Supreme Court of South Carolina
• Decided: February 25, 1971
• Docket: 19175
• Status: Published

Opinions

Brailsford, Justice.

In this action for wrongful death, plaintiff has appealed from the direction of a verdict for the defendant. Plaintiff’s intestate, sixteen-year-old Bennie Boykin, was employed on a late shift at Gene’s Pig ’n Chick in the City of Columbia. His employer was obligated to furnish him transportation from work to his home. On December 18, 1966, he left the drive-in restaurant at about 2:30 A. M. in his employer’s station wagon driven by one Richard Dickerson, an adult co-employee. Several other co-employees, including seventeen-year-old Willis Haymon, were also passengers. It was Dickerson’s duty to take Boykin and the other employees to their respective homes and then to park the station wagon at his own home. Instead of doing so, he took them on an extensive joy ride. During the course of this jaunt some intoxicants were consumed while stops were made at two houses, two night clubs and, finally, at a restaurant several miles out Farrow Road at about S :45 A. M. Shortly after leaving this restaurant and heading back toward Columbia, Dickerson lost control of the station wagon, which left the highway and crashed into a building. All of the occupants were fatally injured except young Willis Haymon.

Plaintiff filed a workmen’s compensation claim for Boy-kin’s death. Finding that by the terms of his employment Boykin was entitled to transportation to his home after work and that on this night he “was never taken to his home through no fault of his own,” the hearing commissioner found the death to be compensable. Pending appeal to the full commission, the claim was compromised and settled without admission of liability. This action for wrongful death was then commenced against the administrator of the estate of Richard Dickerson.

In granting the defendant’s motion for a directed verdict, the court ruled that Boykin was guilty of contributory negligence as a matter of law, and that this tort action based upon the negligence of a co-employee is barred by the Workmen’s Compensation Act, Sec. 72-401, Code of 1962.

The court erred in holding that plaintiff’s recovery was barred by her intestate’s contributory negligence, which, even if established as the only reasonable inference from the evidence (which we do not decide), is no defense against liability based upon Dickerson’s reckless misconduct, of which there was abundant evidence.

Benefits provided by the Workmen’s Compensation Act are the exclusive remedy of an injured employee against his employer “or those conducting his business.” Sec. 72-401, supra. Under this section a fellow employee is not exempt from common law liability “unless at the time of the delict, the employee * * * was performing work incident to the employer’s business under circumstances which, in the absence of an applicable common law defense, would have rendered the employer liable at common law, for the acts of the employee under the doctrine of respondent superior.” Williams v. Bebbington, 247 S. C. 260, 266, 146 S. E. (2d) 853, 855-856 (1966). The only reasonable inference from the facts which have been stated is that almost immediately upon driving away from his employer’s place of business, Dickerson forsook the task assigned to him and embarked upon the pursuit of his own ends. It is abundantly clear that while thus engaged he was not conducting his employer’s business within the meaning of the statute. Whether upon leaving the Farrow Road restaurant, several miles from the point of deviation, and starting back toward Columbia he resumed the scope and course of his employment was, at best from defendant’s standpoint, a jury issue. We decide only that the court erred in resolving this issue in defendant’s favor as a matter of law. Cf. Adams v. South Carolina Power Co., 200 S. C. 438, 21 S. E. (2d) 17 (1942); Annot, 51 A. L. R. (2d) 120, 145 (1957).

Whether plaintiff’s workmen’s compensation claim was meritorious is not at issue in this action and is irrelevant to the merits of the appeal. Defendant was not a party to that proceeding and suffered no prejudice from it. Neither the employer nor its compensation carrier can be prejudiced by this action. Indeed, the carrier will be entitled to reimbursement in the amount of the compromise settlement from any recovery against defendant. The defense of judicial estoppel has not been raised, and the facts appearing here would not support it. See 28 Am. Jur. (2d), Estoppel and Waiver, Sec. 70 (1966).

Reversed and remanded.

Moss, C. J., and Lewis and Bussey, JJ., concur. Littlejohn, J., dissents.