THE STATE OF SOUTH CAROLINA

In The Supreme Court

Joseph Glenn Hicks, Sr.,

Deceased Employee; and

Shirley Hicks and

Joseph Glenn Hicks, Jr.,

Minors, by and through

their Guardian ad Litem, Respondents,

v.

Piedmont Cold Storage,

Inc., Employer, and

Atlantic Mutual

Insurance Company,

Carrier, Petitioners.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Greenville County

C. Victor Pyle, Jr., Circuit Court Judge

Opinion No. 24928

Heard December 17, 1997 - Filed April 5, 1999

REVERSED

David Hill Keller, of Haynsworth, Marion, McKay &

Guerard, of Greenville, for petitioners.

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Robert P. Foster, of Foster & Foster, L.L.P., of

Greenville, for respondents.

FINNEY, C.J.: We granted a writ of certiorari to review the

Court of Appeals' decision in Hicks v. Piedmont Cold Storage, Inc., 324 S.C.

628, 479 S.E.2d 831 (Ct. App. 1996). We reverse.

The children of the deceased, Joseph Hicks, Sr., brought this

workers' compensation action against employer, Piedmont Cold Storage,

seeking death benefits. Hicks was killed while repairing the personal vehicle

of the plant manager on a Saturday at Piedmont Cold Storage. The single

commissioner, affirmed by the appellate panel of the commission, denied the

claim finding that Hicks did not: (1) work regularly on Saturdays; (2) clock in

on the date of the accident; or (3) benefit Piedmont in any way on the day of

the accident. The commissioner also found that Hicks worked for the

personal benefit of Lewis and therefore his death did not result from an

injury by accident arising out of and in the course of his employment with

Piedmont.

The circuit judge reversed and held the tasks performed by Hicks

at the time of his death were incidental to his employment. Further, he

found the accident occurred: (1) on Piedmont premises; (2) with Piedmont

tools; and (3) while he performed a task under the direction and supervision

of his superior. The circuit judge concluded the commission's decision was

against the substantial weight of the evidence and ordered Piedmont to pay

death and funeral benefits to the minor children. The Court of Appeals

affirmed.

Piedmont contends the Court of Appeals and circuit court erred

in reversing the commission's decision because it was supported by

substantial evidence. Further, Piedmont asserts the Court of Appeals and

circuit court substituted their judgment for that of the workers'

compensation commission on questions of fact. We agree.

The findings of an administrative agency are presumed correct

and will be set aside only if unsupported by substantial evidence. Rodney v.

Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996). A court shall not

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substitute its judgment for that of the agency as to the weight of the evidence

on questions of fact. Rodney, supra. The court may reverse the decision if

substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions or decisions are clearly

erroneous in view of the reliable, probative and substantial evidence of the

whole record. Id.

The key factor in determining the children's entitlement to

compensation here is whether the work benefitted the employer. Fountain v.

Hartsville Oil Mill, 207 S.C. 119, 32 S.E.2d 11 (1945)(workers' compensation

benefits denied because the employee's activity provided no benefit to the

employer). The employee in Fountain was injured during regular working

hours while working at his supervisor's private residence and we held there

was no coverage. Here, the decedent was being paid by his supervisor for

work done on the supervisor's personal vehicle on a non-work day at the

employer's business. The record shows that Hicks did not regularly work on

Saturdays and did not clock in on the day of the accident.

There is substantial evidence in the record supporting the

commission's finding that the work performed by Hicks did not benefit

Piedmont and was for the personal benefit of the plant manager. The

findings of fact must be affirmed if they are supported by the evidence.

Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366 (1995). Based on

the reasoning in Fountain, the accident here was outside the course of

decedent's employment. Further, the circuit court and Court of Appeals

substituted their judgment for that of the commission in finding that Hicks

conferred some benefit on Piedmont. The supervisor did not lose any time

from work as the repair was being done on a Saturday.

The substantial evidence rule controls here, and accordingly the

decision of the Court of Appeals is

REVERSED.

MOORE, WALLER, and BURNETT, JJ., concur. TOAL, A.J.,

dissenting in separate opinion.

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TOAL, A.J.: I respectfully dissent from the majority's determination that

Hicks's injury is not compensable under the South Carolina Workers'

Compensation Act. I would hold that Hicks's injury was by accident arising out

of and in the course of his employment and therefore compensable. Thus, I

would affirm the Court of Appeals' opinion.

The majority relies exclusively upon Fountain v. Hartsville,1 stating, "The

key factor in determining the children's entitlement to compensation here is

whether the work benefitted the employer." However, by framing the analysis

in such a restricted manner, the majority disregards this Court's trend in

awarding compensation.

In Fountain, this Court relied heavily on, and quoted extensively from,

the North Carolina Supreme Court's decision in Burnette v. Palmer-Lipe Paint

Co., 4 S.E.2d 507 (N.C. 1939). Since Burnette, however, North Carolina courts

have recognized the impossible situation in which an employee is placed when

a superior asks the employee to perform personal work for the superior. In

Pollock v. Reeves Brothers, Inc. , 328 S.E.2d 282 (N.C. 1985), the North Carolina

Supreme Court, in reversing its court of appeals, stated that an employee is

"entitled to recover under the workers' compensation principle that when a

superior directs a subordinate employee to go on an errand or perform some

duty beyond his normal duties, an injury sustained in the course of that task is

compensable." Pollock, 328 S.E.2d at 287. One of the cases relied upon by

Pollock was Stewart v. North Carolina Dep't of Corrections, 225 S.E.2d 336

(N.C. Ct. App. 1976), the same case cited by our Court of Appeals in the instant

case. While these North Carolina decisions do not totally jettison the "employer

benefit" requirement, they do hold that even a slight, indirect benefit to the

employer will suffice where the employee is acting pursuant to instructions by

his superior. See Stewart, supra (noting that the employer would benefit

indirectly because it was anticipated the morale of the employees would

improve).

However, one need not go beyond the holdings of this Court to observe

that we have awarded compensation in a variety of circumstances where the

employee was acting outside his normal duties, and the benefit to the employer

was only slight or indirect. See, e.g., Howell v. Kash & Karry, 264 S.C. 298~ 214

S.E.2d 821 (1975)(holding that the injury was compensable where the employee

was injured while chasing two boys who had stolen a customer's purse); Sexton

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v. Freeman Gas Co., 258 S.C. 15, 187 S.E.2d 128 (1972)(holding that the injury

was compensable where employee was injured while driving company truck to

help put out brush fire); Cauley v. Ross Builders Supplies, Inc., 238 S.C. 38, 118

S.E.2d 879 (1961)(holding that the injury was compensable where employee was

injured while using the company's table saw to fashion a table leg for a fellow

employee); Portee v. South Carolina State Hosp., 234 S.C. 50, 106 S.E.2d 670

(1959)(holding that the injury was compensable under the "employer benefit"

doctrine where employee died after receiving a penicillin injection from a co

employee as medication for a sore throat). Clearly, the overwhelming weight

of authority requires that compensation be awarded in the present case.

I would join the well reasoned opinion of the Court of Appeals and affirm

the circuit court's decision to award compensation based on the fact that the

injury occurred (1) on the. employer's premises; (2) with the employer's tools;

and (3) while Hicks performed a task under the direction and supervision of his

superior. Moreover, Hicks conferred an indirect benefit on his employer in that

his superior was able to spend more time running the plant in lieu of dropping

off and picking up his car from a repair shop.

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