Sylvan v. Sylvan Bros., 16885

• Citation: 225 S.C. 429,82 S.E.2d 794
• Decision Date: 29 June 1954
• Docket Number: No. 16885,16885
• Parties: SYLVAN v. SYLVAN BROS., Inc., et al.
• Court: United States State Supreme Court of South Carolina

Page 794

82 S.E.2d 794

225 S.C. 429

SYLVAN v. SYLVAN BROS., Inc., et al.

No. 16885.

Supreme Court of South Carolina.

June 29, 1954.

Fulmer & Barnes, Columbia, for appellants.

J. Bratton Davis and C. T. Graydon, Columbia, for respondent.

STUKES, Justice.

This appeal is from judgment affirming an award of workmen's compensation, one member of the Industrial Commission dissenting. Claimant was cofounder many years ago, and later president, of Sylvan Bros., Inc., outstanding retail jewelers of Columbia. The facts are undisputed so the question which is dispositive of the appeal is one of law. 'Upon admitted or established facts the question of whether an accident is compensable is a question of law and this is not an invasion of the fact-finding field of the Commission'. Jordan v. Dixie Chevrolet, Inc., 218 S.C. 73, 61 S.E.2d 654, 656.

Claimant, who was seventy-seven years old at the time of his accident, was, as said, the president and principal executive of the employer corporation which, with its insurance carrier, appealed from the award. He lived at a leading hotel of Columbia, The Jefferson, and was on his way from the hotel to the store, as was his custom, at a little after eight o'clock on the morning of January 24, 1948, when he slipped on the icy pavement of Main Street and fell at a point about two and a half blocks from the store; he regularly opened and closed the store each day. His hip was broken, which resulted in long hospitalization and permanent injury Claim for compensation was promptly filed but there was no hearing upon it until nearly five years later. Award was then made for the permanent injury, for disfigurement and for medical expenses, all of which aggregated $18,372.10.

The claimant was in the habit of doing 'paperwork', including the preparation of advertisements, in his hotel room, which was his home, at night, and when he fell on the street he had in his pocket papers of the business upon which he had worked in his room on the night before. However, it is not contended that he was paid an hourly wage by which it might be found that he was paid for the time consumed in walking along the street on his way to work; and the only reasonable conclusion from the evidence is that the work that he did in his hotel room, which was his home, was done there for his own convenience. Nor is it contended that the corporation paid the room rent and made claimant's hotel room its place of business. He testified, in effect, that sales and other interruptions during regular business hours at the store prevented the concentration necessary for the proper performance of the work which he did in his room; but no reason is suggested why he could not have remained in the privacy of the store after the closing hour, when he would have been alone. The taking of the 'paperwork' to his room was, therefore, for his own convenience. The store was at his disposal. It is common knowledge that business executives, professional men and 'white-collar' employees generally, and sometimes others, take work home for their convenience; and it is for their convenience. The journey to and fro is not in the course of employment because the main purpose of it is to go home or to return to the place of employment, and the journey would be made irrespective of the homework.

The fact that claimant had in his pocket papers of the business upon which he had worked in his room on the night before did not convert him into an employee in the course of his employment, within the meaning of the workmen's compensation law, at the time of the unfortunate accident; he was simply on his way to work and not on an errand for his employer, either to transport the papers or otherwise; it is an inescapable inference from the record that he would have attempted to go to the store that morning as he always did, papers or no papers. Nor did the accident arise out of the employment. The ice on the street was a danger common to the neighborhood, to which all pedestrians were exposed, and it had no relation to claimant's employment. Manifestly, there was no causal connection between the employment and the injury.

The judgment will have to be reversed upon the authority of Gallman v. Springs Mills, 201 S.C. 257, 22 S.E.2d 715; Dicks v. Brooklyn Cooperage Co., 208 S.C. 139, 37 S.E.2d 286; Hinton v. North Georgia Warehouse Corp., 211 S.C. 370, 45 S.E.2d 591, from which the writer hereof dissented but of course is bound by the decision; McDonald v. E. I. DuPont De Nemours & Co., 223 S.C. 217, 74 S.E.2d 918; and Troutman v. Williams Furniture Co., 224 S.C. 353, 79 S.E.2d 374.

The Gallman case, supra [201 S.C. 257, 22 S.E.2d 716], is especially in point and, therefore, controlling; the injured employee there was en route to work, carrying his tools, when he slipped and fell on the employer-owned icy street. The latter, emphasized fact made it a stronger case for compensation (which was denied) than this. The remarkable similarity of the facts in that case and this is shown by the following excerpt from the opinion: 'Upon the sounding of the 5:45 A.M. siren, the respondent, dressed in his work clothes and carrying the tools needed and used by him as a weaver in the mill, left his dwelling and proceeded to walk upon and along one of the streets provided by Springs Mills towards the cotton mill, his place of employment. After he had traveled approximately three-fourths of the distance between his residence and the cotton mill and was within a short distance thereof, he slipped and fell at a slick place on the ice on the sidewalk portion of the street and sustained injuries, including a badly broken arm, necessitating loss of time from work, medical treatment and other expenses.' The court concluded as follows, the present applicability of which cannot be soundly avoided: 'However much we might sympathize with the respondent, and regardless of what we may think the law should be in a case of the present character, it is not within our power to translate this sympathy and conviction into law. That is a strictly legislative function.'

A strongly reasoned decision which is in line with our cases, cited supra, is Industrial Commission of Ohio v. Gintert, 128 Ohio St. 129, 190 N.E. 400, 92 A.L.R. 1032. It involved the compensation claim of a teacher who was killed in an automobile accident when on her way to work. In accord with established custom, she had taken home work to be done in connection with her duties as a teacher; and she had with her at the time of the accident certain papers of her pupils, just as the instant claimant had in his pocket papers relating to his employment, upon which he had worked at home on the night before. The Ohio court denied compensation, expressly overruling its prior conflicting decision, upon the ground that there was no causal connection between the accident and the employment.

Appellants and respondent here cite volume 1 of Larson's Workmen's Compensation Law, respondent the following from Sec. 18.34, page 259: 'A trip to or from the claimant's home is in the course of employment if, combined with the personal purpose of going home, there is a business purpose which would have led to the taking of the trip in the absence of the personal purpose; or if the home has become a regular situs of employment; or if the injury ocurs while the business activity is actually being carried on, regardless of its relative importance.' But the facts of this case do not fit that text. Rather, they come within the following from Sec. 18.31, page 253: 'It would be rash to announce a sweeping rule that whenever the employee performs any service at home, the intervening journey is in the course of employment. The teacher who does a little preparation at home, the lawyer who takes home a brief to read at his convenience, the newspaperman who polishes up a bit of writing at home, all might insist on compensation coverage of all their movements to and around the house by virtue of some morsel of work carried about in their pockets.' It may be added that a member of this court who takes a brief home with him to read is not in the course of his employment when on the way to or from his office, although the brief may be in his pocket or in his hands when he is injured by accident. The whole of Sec. 18 of Larson is interesting and enlightening upon the subject. His conclusions are summarized at the beginning of it in the following headnote, at page 240:

'Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.'

There may also be appropriately quoted the following criticism of Langg v. Board of Education, 70 S.D. 343, 17 N.W.2d 695, at pages 255, 256:

'A decision of this kind gives one the distinct impression of clutching at straws to save an award. Is compensation law prepared to follow up the implications of a decision that professional employees (who all in some degree share the characteristic of doing part of their work at home) may convert virtually their entire day into the 'course of employment' by virtue of such trivia as opening the front door to see whether to suspend school on stormy days? Teachers, doctors, lawyers, architects, artists, executives,--almost any employee whose work is not strictly physical--have frequent occasion to perform services of some kind at home, often far more substantial than that of looking over the weather. If the going and coming rule is about to be subjected to a process of gradual erosion, through the device of finding some tidbit of work performed at home, then...