Crabill v. Livengood

• Decision Date: 28 December 1967
• Docket Number: No. 1,No. 20766,20766,1
• Citation: 142 Ind.App. 624,231 N.E.2d 854
• Parties: William Harrison CRABILL, Appellant, v. Kirk Eugene LIVENGOOD, Appellee
• Court: Indiana Appellate Court

Page 854

231 N.E.2d 854

142 Ind.App. 624

William Harrison CRABILL, Appellant, v. Kirk Eugene LIVENGOOD, Appellee.

No. 20766.

Appellate Court of Indiana, Division No. 1.

Dec. 28, 1967.

William H. Deniston, Rochester, Stevens, Wampler, Travis & Feagler, Plymouth, for appellant.

Chipman, Chipman & Rakestraw, Plymouth, for appellee.

PRIME, Judge.

Action by the appellant Crabill against the appellee Livengood for damages for injuries sustained in an automobile collision.

There was an original and amended complaint and in both a contractual relationship involving the automobile trip was alleged.

The automobile was owned and driven by the appellee and the appellant was a passenger. A collision occurred at an intersection with a second car which is not involved in this appeal.

The issues were formed by the complaint and a motion to dismiss for lack of jurisdiction filed by the appellee. The motion to dismiss alleged that the appellant was the employee of the appellee and thus the matter was one to fall under the Indiana Workmen's Compensation Law.

The court conducted a trial on the issues set out and found that the motion to dismiss should be granted and rendered judgment accordingly by dismissing the action.

The appellant filed objections to the judgment of dismissal and a motion for new trial, the grounds of which were insufficient evidence and that the decision was contrary to law.

The court overruled the motion and this action is the error assigned.

The facts set out in this case are that the appellee had contracted with the appellant for a series of flying lessons. The appellant was a former flyer in the war and had been giving private lessons for various persons for several years. The appellee used a plane which was owned by his employer and was given several lessons by the appellant. On the day of the accident, the defendant-appellee was in Mentone, Indiana. He called the plaintiff in Rochester, Indiana, and asked him if he would fly the plane from Rochester Airport, where it was at the time, to Mentone and stated that he would drive him back home to Rochester in his car. The appellant flew the plane to Mentone as requested. He gave the appellee a one-half hour flying instruction for a fee of $2.50. At about 3:30 P.M. they got into the appellee's car and proceeded to drive to Rochester. On the way home the accident occurred at a cross road intersection. The appellant suffered injuries for which he asked money damages from the appellee.

We are thus confronted with the sole issue of the relationship between the two parties. If the appellant was an employee of the appellee the court below would have no jurisdiction to hear this action. If the appellant was an independent contractor or a casual employee the court should retain jurisdiction.

Though courts have refrained from defining 'casual employment', the test in each particular case is whether service rendered or work done, rather than the contract of hiring, is of casual nature; infrequency of employment or its duration being immaterial.

A workman is a 'regular employee' if hired to do work in the usual course of trade, business or occupation of employer. State ex rel. Bettman v. Christen, 128 Ohio St. 56, 190 N.E. 233; Reese v. Industrial Commission of Ohio, 55 Ohio App. 76, 8 N.E.2d 567.

Work is 'casual' when not permanent nor periodically regular, but occasional, and not in the usual course of employer's trade or business; the kind of work done and not the duration of service is the determining factor. Sears Roebuck & Co. v. Pixler, 140 Fla. 677, 192 So. 617, 620.

Employment must be casual and not in usual course of employer's business to bring it within class of 'casual employment'. Barker v. Eddy, 97...