Boykin v. Prioleau
| Decision Date | 25 February 1971 |
| Docket Number | No. 19175,19175 |
| Citation | 179 S.E.2d 599,255 S.C. 437 |
| Court | South Carolina Supreme Court |
| Parties | Trophine BOYKIN, as Administratrix of the Estate of Bennie Boykin, Appellant, v. Oscar E. PRIOLEAU, as Temporary Administrator of the Estate of RichardDickerson, Respondent. |
Luther M. Lee and Dollas D. Ball, Columbia, for appellant.
J. Reese Daniel, Columbia, for respondent.
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 5:45 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 Boykin'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 Roykin 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 Respondeat 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.
I respectfully dissent and would affirm the judgment of the lower court.
I agree with Mr. Justice BRAILSFORD when he said, referring to Section 72--401, '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 Respondeat superior." This court so held in the Williams case cited in the majority opinion. I disagree with the application of the facts in this case to the undisputed rule.
It has been established in this case that at the time of the fatal collision Bennie Boykin was covered by workmen's compensation insurance. His beneficiaries filed a claim, and the employer (or insurance carrier) paid for the death of Bennie Boykin. His death arose out of and in the course of his employment.
The application of the rule in Williams, quoted above, poses for the court this question: under the facts and circumstances of this case can Boykin's administratrix sue the administrator of Richard Dickerson, who was driving the vehicle, and sue the employer and hold the employer liable under the doctrine of Respondeat superior? I submit that the employer could be held for the delicts of the driver of the station wagon (except for the workmen's compensation act) and accordingly, the employer and the employee are both exempt and cannot be held in this tort action.
These facts are not in dispute: Dickerson (the driver) and Boykin (plaintiff's intestate) were employed at the same establishment, which was a drive-in. The employer owned a station wagon and directed Dickerson to take Boykin and other employees home. It was a part of the employment agreement that the employer would transport these employees home and transport them from their homes back to the place of business. The employer was under contract to provide this transportation; he also had a common law duty to transport them safely.
It is the position of the appellant that when the driver, Dickerson, deviated from the task assigned him, that he, Dickerson, was no longer an employee (at the time of the...
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