Moses KIRKSEY, Employee, Petitioner v. ASSURANCE TIRE COMPANY, Employer, and South Carolina Insolvency Fund, Carrier, Respondents

Supreme Court of South Carolina1994-04-25No. 24056

314 S.C. 43443 S.E.2d 803

Summary · law.co

Holding. Foster was not an employee under the Workers' Compensation Act because she was a gratuitous worker who received no compensation and did not qualify as employed under a contract of hire or appointment. The Court of Appeals decision is affirmed.

An employee sought workers' compensation benefits after suffering a workplace injury at Assurance Tire Company. The employer denied coverage, arguing it employed only three workers and therefore fell outside the Workers' Compensation Act's scope. The employee contended that the owner's daughter, Vivian Foster, constituted a fourth employee, which would have subjected the company to the Act's requirements. The Single Commissioner and Full Commission found Foster was an employee, and the Circuit Court affirmed, but the Court of Appeals reversed that determination.

The Supreme Court addressed whether Foster qualified as an employee under the statutory definition. The statute defines an employee as any person engaged in employment under an appointment, contract of hire, or apprenticeship. Foster had not received any compensation; she worked without pay to assist her father during financial hardship because he had previously helped her. The court examined two potential bases for employment status: contract of hire and appointment. The court determined that the term "hire" inherently requires payment and that gratuitous workers—those who work without compensation—do not satisfy this requirement. The court rejected the argument that Foster's work constituted employment under an appointment, finding that interpretation unsupported by authority outside a limited set of Missouri cases.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a worker who receives no compensation qualifies as an employee under the Workers' Compensation Act
Meaning of 'contract of hire' in the statutory definition of employee
Whether employment can exist under an 'appointment' absent compensation

Procedural posture

The South Carolina Supreme Court reviewed the Court of Appeals' reversal of lower court decisions awarding workers' compensation benefits, applying the preponderance of the evidence standard for jurisdictional questions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Moore, Justice:

This case is before us on a writ of certiorari to review the Court of Appeals’ decision reported at — S.C. —, 428 S.E. (2d) 721 (Ct. App. 1993). We affirm.

FACTS

Petitioner was injured while employed by respondent Assurance Tire Company (Assurance) and sought Workers’ Compensation benefits. Respondents denied coverage claiming Assurance employed only three employees and was not subject to the Workers’ Compensation Act (Act) pursuant to S.C. Code Ann. § 42-1-150 (1985). Petitioner argues the owner’s daughter, Vivian Foster, was the fourth employee. The Single Commissioner awarded benefits finding Foster was an employee under the Act. The Full Commission affirmed. The Circuit Court also affirmed. The Court of Appeals reversed.

ISSUE

Was Foster an employee under the Act?

DISCUSSION

Initially, we address the standard of review to be applied in this case. The Circuit Court applied the substantial evidence standard enunciated in Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E. (2d) 304 (1981). The Court of Appeals stated it could find facts in accordance with the preponderance of the evidence when determining jurisdictional questions. The Court of Appeals applied the correct standard of review. Vines v. Champion Bldg. Products, — S.C. —, 431 S.E. (2d) 585 (1993).

S.C. Code Ann. § 42-l-130(Supp. 1993) provides in pertinent part: “The term ‘employee’ means every person engaged in an employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written ...” (emphasis added). The word “hire” generally connotes payment of some kind. IB Larson, Law of Workmen’s Compensation § 47.10 (1993). See also BLACK’S 729 (6th Ed. 1990). There was no allegation that Foster was being paid in any form. Foster testified that she helped her father because he was in bad financial shape and he had helped her in the past. We find Foster was a gratuitous worker.

Most jurisdictions have held gratuitous workers are not employees under workers’ compensation acts. See e.g. Mandala v. Wells, 212 App. Div. 370, 209 N.Y.S. 35 (1925), Garner v. Reed, 856 S.W. (2d) 698 (Tenn. 1993); Humphries v. Thomas, 244 Va. 571, 422 S.E. (2d) 755 (1992). See also 99 C.J.S. Workers’ Compensation § 64 (1958). We now hold gratuitous workers are not employees under a contract of hire. Therefore Foster was not employed by Assurance under a contract of hire.

Petitioner then argues, as Judge Garner opines in his dissent, Foster was employed under an appointment. A few Missouri cases have held that an employee was employed under an appointment under similar facts. Stegeman v. Saint Francis Xavier Parish, 611 S.W. (2d) 204 (Mo. 1981); Fielder v. Prod. Credit Assoc., 429 S.W. (2d) 307 (Mo. App. 1968); Lawson v. Lawson, 415 S.W. (2d) 313 (Mo. App. 1967). However, “the application of the term appointment to the kind of ordinary service relation involved [here] seems rather farfetched, and does not seem to have found favor outside of Missouri.” IB Larson, Law of Workmen’s Compensation § 47.41(a) (1993). We find Foster was not employed under an appointment.

We hold Foster was not an employee of Assurance under § 42-1-130 and, therefore, petitioner was not covered under the Workers’ Compensation Act. Accordingly, the decision of the Court of Appeals is

Affirmed.

Chandler, Acting C.J., Finney and Toal, JJ., and Walter J. Bristow, Jr., Acting Associate Justice, concur.