Kirksey v. Assurance Tire Co., No. 24056
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | MOORE; CHANDLER, Acting C.J., FINNEY and TOAL, JJ., and WALTER J. BRISTOW, Jr. |
| Citation | 314 S.C. 43,443 S.E.2d 803 |
| Parties | Moses KIRKSEY, Employee, Petitioner, v. ASSURANCE TIRE COMPANY, Employer, and South Carolina Insolvency Fund, Carrier, Respondents. . Heard |
| Docket Number | No. 24056 |
| Decision Date | 02 March 1994 |
Page 803
v.
ASSURANCE TIRE COMPANY, Employer, and South Carolina
Insolvency Fund, Carrier, Respondents.
Decided April 25, 1994.
Page 804
[314 S.C. 44] C. Ben Bowen and Linda McKenzie both of Bowen, McKenzie & Bowen, Greenville, for appellant.
Hal J. Warlick of Warlick Law Office, Easley, for respondents.
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.
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.
Was Foster an employee under the Act?
[314 S.C. 45] 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. § 42-1-130 (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. 1B Larson, Law of Workmen's Compensation § 47.10 (1993). See also BLACKS 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....
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Hernandez-Zuniga v. Tickle, 4253.
...Cab Co., 343 S.C. 102, 108, 538 S.E.2d 276, 279 (Ct. App.2000) aff'd 349 S.C. 589, 564 S.E.2d 110 (2002); Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d, 585, 586 (1993); Porter v. Labor Depot, 372 S.C.......
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Gray v. Club Group, Ltd., 3119.
...315 S.C. 13, 431 S.E.2d 585 (1993); Lake v. Reeder Construction, at 247, 498 S.E.2d at 653. See also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994) (this Court can find facts in accordance with the preponderance of evidence when determining jurisdictional question in Work......
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Nelson v. Yellow Cab Co., 3249.
...13, 431 S.E.2d 585 (1993); Lake v. Reeder Constr. Co., 330 S.C. 242, 498 S.E.2d 650 (Ct.App.1998). See also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994)(this Court can find facts in accordance with the preponderance of evidence when determining jurisdictional question i......
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Porter v. Labor Depot, 4212.
...of evidence. Canady v. Charleston County Sch. Dist., 265 S.C. 21, 25, 216 S.E.2d 755, 757 (1975); see also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994) (holding this court can find facts in accordance with the preponderance of evidence when determining a jurisdictional ......
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Hernandez-Zuniga v. Tickle, No. 4253.
...Cab Co., 343 S.C. 102, 108, 538 S.E.2d 276, 279 (Ct. App.2000) aff'd 349 S.C. 589, 564 S.E.2d 110 (2002); Kirksey v. Assurance Tire Co., 314 S.C. 43, 45, 443 S.E.2d 803, 804 (1994); Vines v. Champion Bldg. Prods., 315 S.C. 13, 16, 431 S.E.2d, 585, 586 (1993); Porter v. Labor Depot, 372 S.C.......
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Gray v. Club Group, Ltd., No. 3119.
...315 S.C. 13, 431 S.E.2d 585 (1993); Lake v. Reeder Construction, at 247, 498 S.E.2d at 653. See also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994) (this Court can find facts in accordance with the preponderance of evidence when determining jurisdictional question in Work......
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Nelson v. Yellow Cab Co., No. 3249.
...13, 431 S.E.2d 585 (1993); Lake v. Reeder Constr. Co., 330 S.C. 242, 498 S.E.2d 650 (Ct.App.1998). See also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994)(this Court can find facts in accordance with the preponderance of evidence when determining jurisdictional question i......
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Porter v. Labor Depot, No. 4212.
...of evidence. Canady v. Charleston County Sch. Dist., 265 S.C. 21, 25, 216 S.E.2d 755, 757 (1975); see also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994) (holding this court can find facts in accordance with the preponderance of evidence when determining a jurisdictional ......