McMillan v. Huntington & Guerry Elec. Co.

• Citation: 277 S.C. 552,290 S.E.2d 810
• Decision Date: 13 April 1982
• Docket Number: No. 21693,21693
• Court: United States State Supreme Court of South Carolina
• Parties: Robert McMILLAN, Respondent, v. HUNTINGTON & GUERRY ELECTRIC CO. and Insurance Company of North America, Appellants.

Page 810

290 S.E.2d 810

277 S.C. 552

Robert McMILLAN, Respondent, v. HUNTINGTON & GUERRY ELECTRIC CO. and Insurance Company of North America, Appellants.

No. 21693.

Supreme Court of South Carolina.

April 13, 1982.

Carroll H. Roe, Jr., of Love, Thornton, Arnold & Thomason, Greenville, for appellants.

W. Harold Christian, Jr., of Law Offices of John Bolt Culbertson, Greenville, for respondent.

LITTLEJOHN, Justice:

In this Workmen's Compensation claim, the Hearing Industrial Commissioner, a majority of the Full Commission and the Circuit Court have approved an award to Robert McMillan, claimant-employee. The employer and the insurance carrier have appealed.

There is little dispute as to the facts out of which the claim arose. The employee worked for Huntington & Guerry Electric Company, employer, home based in the city of Greenville. In addition to working in Greenville, the nature of the employment required employees, including McMillan, to travel to other nearby towns for the purpose of installing electrical equipment. When the employee worked at Greenville, he was compensated at the rate of $4.00 per hour. When working away from Greenville, according to one of the owners "... if you work within a 15 mile radius of our office, you draw a standard basic wage scale. Any distance beyond that, we increase the man's hourly wage-rate, depending on the number of miles away from Greenville so that he may commute or board at the job site, any way he chooses."

On the date of the accident, the claimant-employee was commuting daily to Hendersonville, North Carolina, a distance of forty-one miles, requiring an estimated one hour of travel. On this date he was a passenger riding with a co-employee, who was driving his own personal automobile, which ran off the highway, resulting in injuries to the claimant-employee. On alternate days, the claimant-employee drove his vehicle.

On this job, the employee was being paid an additional fifty cents per hour; he worked ten hours per day, four days per week. When he commuted a lesser distance to work, a lesser amount than fifty cents per hour was added to his hourly wage.

It is the contention of the employer that this employee was merely commuting to work and that under the well-established general rule in this State, no compensation is payable. It is the contention of the employee that, in fact, his wages included compensation for travel time and his claim comes under one of the well-established exceptions to the general rule.

The sole question, determined by the Circuit Court below and to be decided by this Court, as taken from the appellant-employer's brief, is as follows:

Does payment of additional hourly compensation for working out of town come within any of the exceptions to the adopted rule of law in South Carolina that an employee's injuries sustained while en route to work do not arise out of and in the course and scope of his employment?

Prior to the Administrative Procedures Act, enacted by the General Assembly of this State in 1977, on appeal, the scintilla rule was applied. The scope of review has now been changed such that the Industrial Commission, being an administrative tribunal, will not be reversed unless there is no "substantial evidence" supporting its finding. Lark v. Bi-Lo, Inc., et al., 276 S.C. 130, 276 S.E.2d 304 (1981); Ellis v. Spartan Mills, et. al., S.C., 277 S.E.2d 590 (1981).

We have heretofore stated the general ruling and exceptions that control claims involving accidents and injuries sustained by employees while going to and coming from their place of employment. In Bickley v. S. C. Electric and Gas Company, 259 S.C. 463, 192 S.E.2d 866 (1972), this Court said:

We have held, as a general rule, subject to the exceptions hereinafter stated, that an injury sustained by an employee while on his way to or from work and away from the premises of the employer does not arise out of and in the course of employment. The exceptions to this rule are as follows: (1) Where, in going to and returning from work, the means of transportation is provided by the employer, or the time that is consumed is paid for or included in...