Kirksey v. Assurance Tire Co., 1964

• Court: Court of Appeals of South Carolina
• Citation: 311 S.C. 255,428 S.E.2d 721
• Decision Date: 30 November 1992
• Docket Number: No. 1964,1964
• Parties: Moses KIRKSEY, Employee, Respondent, v. ASSURANCE TIRE COMPANY, Employer, and South Carolina Insolvency Fund, Carrier, Appellants. . Heard

Page 721

428 S.E.2d 721 311 S.C. 255 Moses KIRKSEY, Employee, Respondent,
v.
ASSURANCE TIRE COMPANY, Employer, and South Carolina
Insolvency Fund, Carrier, Appellants. No. 1964. Court of Appeals of South Carolina. Heard Nov. 30, 1992.
Decided March 1, 1993.
Rehearing Denied April 27, 1993.
Certiorari Granted Nov. 1, 1993.

Page 722

[311 S.C. 256] Hal J. Warlick, Easley, for appellants.

Linda B. McKenzie, Greenville, for respondent.

GOOLSBY, Judge:

Assurance Tire Company and the South Carolina Insolvency Fund appeal the decision of the South Carolina Workers' Compensation Commission awarding Moses Kirksey benefits for an on-the-job accident. The circuit court affirmed. Assurance Tire Company and the Insolvency Fund argue Assurance Tire Company did not regularly employ four employees at the time of Kirksey's accident and, therefore, the commission did not have subject matter jurisdiction to award Kirksey benefits. We reverse.

Because the issue here is jurisdictional, the commission's findings of fact relative to the number of persons employed by Assurance Tire Company are not conclusive on appeal; therefore, the court of appeals has the power and duty to review the record and decide the issue in accordance with the preponderance of the evidence. Brown v. Moorhead Oil Co., 239 S.C. 604, 124 S.E.2d 47 (1962); Crim v. Decorator's Supply, 291 S.C. 193, 352 S.E.2d 520 (Ct.App.1987).

Kirksey suffered serious injury at work when a van driven by a customer pinned him against a wheel-balancing machine. [311 S.C. 257] At the time of the accident, Assurance Tire Company employed two workers in addition to Kirksey. The controversy in this case concerns the status of Vivian Foster, the daughter of Cecil Scurlock, Assurance Tire Company's owner.

Foster kept the books and performed secretarial duties for her father's tire business. She also ran a produce stand for him on the property. Neither Foster nor her

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father received a salary. She testified she helped her father out because he was "in a bad financial bind" and because he had "pitched in to help [her] before, like when [she] got married, he gave [her] 10 acres to get started."

Our workers' compensation law exempts an employer from its provisions if the employer "has regularly employed in service less than four employees in the same business within the State." S.C.Code Ann. § 42-1-360(2) (1985). The term "employee" is defined as "[a] person engaged in an employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written." Id. § 42-1-130 (Supp.1991). Only the term "contract of hire" is pertinent here.

A "contract of hire" is "an essential feature of the employment relation." 1B ARTHUR LARSON, THE LAW OF WORKMEN'S COMPENSATION § 47.10, at 8-302 (1992). The term "contract of hire" connotes payment of some kind. McCreery v. Covenant Presbyterian Church, 299 S.C. 218, 223, 383 S.E.2d 264, 266 (Ct.App.1989), rev'd on other grounds, 303 S.C. 271, 400 S.E.2d 130 (1990); 1B LARSON, supra, § 47.41, at 8-346. Payment, however, "need not be in money, but may be in anything of value." Id. § 47.43(a), at 8-384. Moreover, an employee's right to demand payment for his services from the employer "would seem to be essential to his right to receive compensation." Hollowell v. Department of Conservation and Dev., 206 N.C. 206, 173 S.E. 603 (1934), quoted in Lucas v. Li'l General Stores, 289 N.C. 212, 221 S.E.2d 257, 261 (1976).

Although we are mindful of South Carolina's policy of resolving jurisdictional doubts in favor of the inclusion of employers and employees under the Workers' Compensation Act, Horton v. Baruch, 217 S.C. 48, 56, 59 S.E.2d 545, 548 (1950), we are not persuaded that a preponderance of the evidence supports the conclusion that Foster was an employee of Assurance Tire Company at the time of Kirksey's accident.

[311 S.C. 258] The evidence points clearly to Foster's having the status of a gratuitous worker. She neither received nor expected to receive any kind of pay for...