Hicks v. Piedmont Cold Storage, Inc.

TOAL, Justice:

I respectfully dissent from the majority’s determination that Hicks’s injury is not compensable under the South Carolina Workers’ Compensation Act. I would hold that Hicks’s injury was by accident arising out of and in the course of his employment and therefore compensable. Thus, I would affirm the Court of Appeals’ opinion.

*50The majority relies exclusively upon Fountain v. Hartsville,1 stating, “The key factor in determining the children’s entitlement to compensation here is whether the work benefit-ted the employer.” However, by framing the analysis in such a restricted manner, the majority disregards this Court’s trend in awarding compensation.

In Fountain, this Court relied heavily on, and quoted extensively from, the North Carolina Supreme Court’s decision in Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939). Since Burnett, however, North Carolina courts have recognized the impossible situation in which an employee is placed when a superior asks the employee to perform personal work for the superior. In Pollock v. Reeves Brothers, Inc., 313 N.C. 287, 328 S.E.2d 282 (1985), the North Carolina Supreme Court, in reversing its court of appeals, stated that an employee is “entitled to recover under the workers’ compensation principle that when a superior directs a subordinate employee to go on an errand or perform some duty beyond his normal duties, an injury sustained in the course of that task is compensable.” Pollock, 328 S.E.2d at 287. One of the cases relied upon by Pollock was Stewart v. North Carolina Dep’t of Corrections, 29 N.C.App. 735, 225 S.E.2d 336 (1976), the same case cited by our Court of Appeals in the instant case. While these North Carolina decisions do not totally jettison the “employer benefit” requirement, they do hold that even a slight, indirect benefit to the employer will suffice where the employee is acting pursuant to instructions by his superior. See Stewart, supra (noting that the employer would benefit indirectly because it was anticipated the morale of the employees would improve).

However, one need not go beyond the holdings of this Court to observe that we have awarded compensation in a variety of circumstances where the employee was acting outside his normal duties, and the benefit to the employer was only slight or indirect. See, e.g., Howell v. Kash & Karry, 264 S.C. 298, 214 S.E.2d 821 (1975) (holding that the injury was compensable where the employee was injured while chasing two boys who had stolen a customer’s purse); Sexton v. Freeman Gas Co., 258 S.C. 15, 187 S.E.2d 128 (1972) (holding that the injury *51was compensable where employee was injured while driving company truck to help put out brush fire); Cauley v. Ross Builders Supplies, Inc., 238 S.C. 38, 118 S.E.2d 879 (1961) (holding that the injury was compensable where employee was injured while using the company’s table saw to fashion a table leg for a fellow employee); Portee v. South Carolina State Hosp., 234 S.C. 50, 106 S.E.2d 670 (1959) (holding that the injury was compensable under the “employer benefit” doctrine where employee died after receiving a penicillin injection from a co-employee as medication for a sore throat). Clearly, the overwhelming weight of authority requires that compensation be awarded in the present case.

I would join the well reasoned opinion of the Court of Appeals and affirm the circuit court’s decision to award compensation based on the fact that the injury occurred (1) on the employer’s premises; (2) with the employer’s tools; and (3) while Hicks performed a task under the direction and supervision of his superior. Moreover, Hicks conferred an indirect benefit on his employer in that his superior was able to spend more time running the plant in lieu of dropping off and picking up his car from a repair shop.

. 207 S.C. 119, 32 S.E.2d 11 (1945).