Sexton v. Freeman Gas Co.

187 S.E.2d 128, 258 S.C. 15, 1972 S.C. LEXIS 297

• Court: Supreme Court of South Carolina
• Decided: February 15, 1972
• Docket: 19368
• Status: Published

Opinions

Brailsford, Justice:

Carroll Sexton was killed at about 5:45 on the afternoon of May 2, 1969, when the truck he was driving was struck by a train at a grade crossing in the Town of Chesnee. His widow’s claim for workmen’s compensation benefits was allowed by the hearing commissioner, denied by the full Commission in a split decision, then reinstated by the circuit court. In this appeal by the employer and its insurer, the sole issue is whether the finding by the Industrial Commission that the fatal accident did not arise out of and in the course of employment is supported by evidence.

Freeman Gas Company’s operation in Chesnee was conducted by three employees. Two of these — the bulk-truck operator and the secretary — were paid an hourly wage. Carroll Sexton, who managed the business and was its service and installation mechanic, was a salaried employee. As manager, Sexton set his own schedule during the course of the day. Typically he arrived at the office around eight o’clock in the morning, and was in and out of the office thereafter depending upon the number of service calls received. Sexton’s lunchtime came when the exigencies of business permitted, sometimes as late as three in the afternoon. Not infrequently his work lasted well past five, especially during peak periods of business. It was not unusual for him to be summoned at night or on weekends to attend the emergency needs of customers.

Sexton was free to use his employer’s service truck in traveling between home and work. He did so during the winter when service demands were greatest, but not at other times of the year. On the spring day in question he had driven his own car to work.

At 4:30 on the day of his death, Sexton told Mrs. Haynes, the secretary, that he was going for a haircut, and would return as soon as possible. He then left the office driving the service truck which was equipped with a two-way radio over which calls for service could be transmitted.

A sizeable brushfire had been burning that afternoon on the outskirts of Chesnee. At about ten minutes past five, his haircut completed, Sexton left the barbershop and drove the truck to the scene of the fire. After assessing the blaze, which earlier had threatened a home containing a gas cylinder which Sexton himself had installed, he rendered a few minutes’ assistance in the effort to extinguish the blaze, then departed on the shortest route leading back to the office. The collision occurred on this route.

The owner of the house endangered by the blaze testified that at one point the fire was within seventy-five or a hundred feet of it, and there was testimony that Sexton had checked previous fires in his territory to ascertain the safety of his employer’s tanks. Yet the Commission found his activity at this fire not to have been in the interest of his employer. Assuming that this finding is conclusive, it is not controlling on the question of scope of employment at the time of the accident, as the Commission seems to have assumed.

It has not been suggested that when Sexton departed his office for the barbershop in the company truck, he violated any condition of his contract of employment. On the contrary, the conclusion is unavoidable that the pattern of his managerial and service-installation activity, established by custom and necessity and impliedly accepted by his employer, left Sexton free to structure his time in any manner reasonably consistent with the successful operation of the enterprise placed in his charge. His hours of work were undefined and irregular; no certain place required his presence at a particular moment. He worked both in the office and out of it, according to the unpredictable demands of his customers, at any hour of day or night. His use of the service truck for travel within his territory was of benefit to his employer as well as to himself.

Sexton was killed while traversing the shortest route back to the office, where he expected to lock the service truck in his employer’s fenced lot, and retrieve his own automobile, in which he planned to make an out-of-town trip that evening. At any moment of his fatal journey, he could have been diverted by the summons of the radio to whatever service his employer’s customers required. We think it clear that while so occupied he was continuously subject to his employer’s control; that his fixed salary impliedly compensated him for the time so spent; and the use of his employer’s vehicle in such a manner was an incident of the employment contract and in the interest of his employer.

While we have found no case involving a similar employer-employee relationship, the principles evolved in dealing with certain analogous situations point to the conclusion we have reached. For example, we have recognized that there are exceptions to the general rule of noncompensability for injuries sustained during the basic trip to and from work. These exceptions include cases where, “in going to and returning from work, the means of transportation is provided by the employer, or the time thus consumed is paid for or included in the wages,” or where “the employee, on his way to or from his work, is still charged with some duty or task in connection with his employment.” Gallman v. Springs Mills, 201 S. C. 257, 263, 22 S. E. (2d) 715, 718 (1942). Similar exceptions generally obtain when the employee’s travel to and from the premises occurs at lunchtime. 1 A. Larson, Law of Workmen’s Compensation, Sec. 15.52 (1968).

Conceding that Carroll Sexton’s presence in the vicinity of the brushfire was not in furtherance of his employer’s interests, we nevertheless hold that, under the circumstances which have been related, when he left there and began traveling the shortest route back to the office, he resumed the course of his employment.

Affirmed.

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