Lomax v. City of Greenville

• Decision Date: 13 May 1954
• Docket Number: No. 16869,16869
• Citation: 82 S.E.2d 191,225 S.C. 289
• Parties: LOMAX v. CITY OF GREENVILLE et al.
• Court: South Carolina Supreme Court

Page 191

82 S.E.2d 191

225 S.C. 289

LOMAX v. CITY OF GREENVILLE et al.

No. 16869.

Supreme Court of South Carolina.

May 13, 1954.

James M. Richardson and J. Wiley Brown, Greenville, for appellant.

T. C. Callison, Atty. Gen., Julian L. Johnson, Asst. Atty. Gen., L. M. Cantrell, Columbia, for respondents.

LEGGE, Justice.

Appellant, an employee of the Police Department of the City of Greenville, was accidentally injured while carrying a message from a prisoner in the City jail to the prisoner's wife in a distant section of the City. His claim for compensation under the South Carolina Workmen's Compensation Law, Code 1952, Title 72, was allowed by the Hearing Commissioner, whose award was affirmed by the full Commission. The Circuit Court reversed the award upon the ground that the accident had not arisen out of and in the course of the employment; hence this appeal.

Appellant is a negro, fifty-nine years of age, and at the time of the accident had been employed as janitor by the Police Department of the City of Greenville for approximately thirty years. Actually, his work included many duties not strictly those of a janitor, among them the running of errands and carrying of messages for prisoners.

J. H. Jennings, the Chief of Police, testified that the three lieutenants of police were in charge of the hiring and firing of janitors and had full and complete authority to direct their activities.

O. T. Lowe, the Lieutenant of Police under whom the appellant worked, testified in regard to appellant's duties as follows:

'Well, he has got so many I will have to kind of omit some. I don't believe they should call him a janitor; they ought to have another name for him. His chief duties are to get the building clean, feed the prisoners, see that the prisoners are taken care of. See if there are any sick ones, if any hang themselves back there--if they do, he has to see about that. He has also been instructed down there, if it's nothing except a misdemeanor case--no investigation--if they want to send a message out, if they have no telephone, he has permission to make that trip; if they have a telephone, he has permission to bring them to do that. If I have time I go get them and bring them out and let them make a telephone call.'

To quote further from Lieutenant Lowe's testimony:

'Q. If he has a request by a prisoner to get food or drink or to notify somebody, has he authority to do that? A. Yes.

'Q. Who gave him that authority? A. I did.

'Q. On March 29th of this year so far as you are concerned as Lieutenant of Police, did this janitor, Chester Lomax, have authority, without saying anything to you, to go to the Green Line Section for the purpose of communicating with some person at the request of a prisoner? A. Yes, sir.'

On the day of the accident, appellant's hours of duty were from 3:00 p. m. to 11:00 p. m. About 6:00 p. m., after he had served the evening meal to the prisoners, one of them asked him to go to his home in the 'Green Line' section of the City and tell his wife to come and get him out of jail. It was while engaged in that mission that appellant was injured by being struck by an automobile.

Appellant testified that among the duties assigned to him, and which he had performed for many years, was the job of running errands for prisoners, within the limits prescribed by the Police Department. In some instances he would carry messages on foot; if the distance was great, he would ride the public trolley, as he did on the occasion of his injury. He testified that for such errands he made no charge; that sometimes he would be given a tip; but that such services were not contingent upon his receiving a tip, being part of his duty. In this particular instance, the prisoner had told him that he would give him a dollar when he got back.

Several other officials of the Greenville Police Department testified to the effect that it was the policy of that department to assist in every way possible persons held in custody, and that the janitors were under beneral orders to run errands for the prisoners, subject to certain limitations not pertinent to this case.

The respondents offered no testimony, and the Industrial Commission, in awarding compensation, held that the evidence showed that for many years it had been the practice and policy of the Greenville Police Department to have its janitors run errands for persons held in custody, that such errands involved the facing of street hazards, and that appellant's injuries had occurred as the result of an accident while in the performance of work for his employer that he was employed to do or which he could reasonably have been expected to do in the furtherance of his employer's interests.

In reversing the award of the Industrial Commission, the Circuit Court held that although appellant at the time of his injury was engaged in the performance of services under the general orders of his superiors and with their full knowledge and acquiescence, the City if Greenville had no power to perform, or direct the performance of, such acts; and that the award could not be sustained on the ground of equitable estopped, that doctrine being inapplicable against municipal corporations.

The exceptions, four in number, present three questions, namely:

1. Did the City of Greenville have power to employ the appellant, or to authorize his employment, for the kind of service that he was performing at the time of the injury?

2. Did the accident arise out of and in the course of appellant's employment?

3. Is the doctrine of equitable estoppel applicable against the City of Greenville in this case?

Whether at the time of his injury the appellant was acting pursuant to, or in violation of, his orders, was an issue of fact which was resolved by the Commission in favor of the appellant. Such finding, being based upon substantial evidence, is binding upon the courts.

Code 1952, § 72-356; Ballenger v. Southern Worsted Corp., 209 S.C. 463, 40 S.E.2d 681; White v. Carolina Power & Light Co., 215 S.C. 25, 53 S.E.2d 872; Buff v. Columbia Baking Co., 215 S.C. 41, 53 S.E.2d 879.

There is no suggestion in the record that the Police Department, in prescribing the duties of the appellant, acted contrary to any ordinance or regulation of the City of Greenville; nor does the record suggest that resistance of appellant's claim is based upon any ground other than that his employment for the services that he was performing at the time of his injury was beyond the corporate power.

The basic issue here involved is, therefore, posed in the first of the three questions above stated. If that question be answered in the affirmative, consideration of the other two will become unnecessary.

It is well settled that municipal corporations have...