McDonald v. E. I. du Pont de Nemours & Co.

• Decision Date: 04 March 1953
• Docket Number: No. 16724,16724
• Citation: 223 S.C. 217,74 S.E.2d 918
• Court: South Carolina Supreme Court
• Parties: McDONALD v. E.I. DU PONT DE NEMOURS & CO. et al.

Page 918

74 S.E.2d 918

223 S.C. 217

McDONALD v. E.I. DU PONT DE NEMOURS & CO. et al.

No. 16724.

Supreme Court of South Carolina.

March 4, 1953.

The Order of Judge E.H. HENDERSON requested to be reported follows:

This is an appeal by the defendants from a decision and award of the South Carolina Industrial Commission.

There is only one exception which is as follows:

"That the Industrial Commission erred in affirming that portion of the opinion of the hearing Commissioner reading as follows: 'It is found to be a fact that A.J. McDonald was an employe of E.I. du Pont on July 5, 1951, and that on this date he sustained accidental injuries arising out of, and in the course of, his employment', the error being that such injuries did not arise out of and in the course of such employment."

The words "arising out of and in the course of employment" have given rise to many decisions by the courts and much discussion by the text writers. It happens that in almost every case decisions of some of the courts throughout the nation may be cited on either side. So in this case we are fortunate in having applicable decisions of our own Supreme Court to guide us to a proper solution of the contest.

The claimant was employed at the bomb area in Barnwell County. He had finished his work for the day, and at the time of the accident had gone some distance off the premises of his employer. His work lay within a section known as the "400 area", but he had checked out at what is described as the clock alley when his work terminated at 4:30 in the afternoon. This was on the east side of the highway, a public highway known as South Carolina State Highway No. 50. He had gone from the gate about three hundred yards, and attempted to cross the highway, in order to go to his automobile, which had been parked about a mile from the clock alley gate, on the side of a dirt road. He was not in the performance of any duty to his employer; he was master of his own time and could go and come as he pleased. No duty was required of him by his employer outside the "400 area" or on the public highway. The time he spent in going to the "400 area" and returning to his home in Augusta, Georgia, had no part in the amount of his compensation. The automobile in which he rode to work was parked at any place which the owner of the vehicle might choose, and the claimant was free to select any route decided by him to go between the premises of the du Pont Company and the automobile. The way used by the claimant was not the sole and exclusive or only practicable means of ingress and egress, and the public highway of course was not constructed by or maintained by the du Pont Company, but was under the sole control of the South Carolina State Highway Department.

While attempting to cross the Highway No. 50, he was accidentally injured by being struck by an automobile driven by another employee of the du Pont Company.

The "400 area" was enclosed within a fence. When the claimant went out of the clock alley he walked along the eastern right-of-way of the highway through the area described as the parking lot and onto privately owned property over which the employer had no control. The accident occurred about twenty minutes after he had checked out of the gate. The driver of the automobile which ran into him had also knocked off work at 4:30, and was traveling towards his home in Springfield, South Carolina.

The employer had no control over the highway or the land on either side of it where the accident occurred. The land was owned by people of the community, and was exclusively under the control of the owner, and the highway was used by the traveling public.

The employer did not furnish claimant or its other employees with transportation. It did not prescribe the route they were to follow in going to and from work. The employees working in the "400 area" in their discretion parked their cars in the parking lot on both sides of the paved highway and also alongside the dirt road.

In view of this testimony it is my opinion that the case is governed by the decisions of our Supreme Court in the case of Gallman v. Springs Mills, 201 S.C. 257, 22 S.E.2d 715, and Hinton v. North Georgia Warehouse Corporation, 211 S.C. 370, 45 S.E.2d 591.

In the Gallman case the claimant sustained an accidental injury on a street in a mill village, a short distance before entering the place of his work. It was held that the injury did not arise out of and in the course of his employment.

To the same effect is the Hinton case. Here, the claimant was on a public highway, and was just at the point of making a left turn to enter the premises of the employer when the accident occurred. It was held that he was not entitled to come under the compensation act.

These two cases set forth very clearly that the general rule is that one who is injured on a public highway while going to or returning from his work cannot claim that his injuries arose out of and in the course of employment, but to this rule there are certain exceptions, as follows:

1. 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.

2. Where the employee, on his way to or from his work, is still charged with some duty or task in connection with his employment.

3. Where the way used is the sole and exclusive way of ingress and egress, or where the way of ingress and egress is constructed and maintained by the employer, and there is "some inherent danger in the use of such exclusive street or way."

It will readily be seen that the instant case does not fall within any one of these three exceptions.

In the case of Eargle v. South Carolina Electric & Gas Co., 205 S.C. 423, 32 S.E.2d 240, 243, the employee could not go to his work by means of a mill dam which belonged to the electric company, because water was flowing over it. Consequently in order to report at a certain hour for emergency duty he crossed the lake in a boat and was drowned. It was held that he was entitled to recover, and a fourth exception was laid down to the general rule that a person going to or from his work is not about his employment. This fourth exception is as follows: "That an injury incurred by a workman in the course of his travel to his place of work and not on the...