Smith Ex Rel. Smith v. Coastal Tire & Auto Service

Moss, Chief Justice:

The respondent, Matthew George Smith, was a sixteen year old student at Brandon Hall School in Dunwoody, *79Georgia, and had come home on March 20, 1970, for a ten day spring vacation with his parents. His father was the owner and operator of a business known as Coastal Tire and Auto Service. The respondent apparently did some yard work for his sister during the first several days of his vacation. There is testimony that the respondent went to his father’s place of business on March 25, 1970, and the bookkeeper there was told to place his name on the payroll of Coastal Tire and Auto Service at the rate of 90^ per hour for the rest of his vacation period. The bookkeeper testified that the respondent worked from 8:00 A.M. until 1:00 P.M., and that on June 18, 1971, she issued a check to the respondent for the sum of $4.18 in payment for salary for March 26, 1970. At approximately 1:00 P.M the respondent went to lunch with his father and two visiting salesmen. The respondent was injured at about 2 :30 P.M. when the automobile operated by his father, and in which he was riding, was struck by another car. At the time the respondent was assisting his father in testing the automobile.

On January 21, 1971, a claim for benefits under the Workmen’s Compensation Act was filed in behalf of the respondent. The case was heard before a Single Commissioner who thereafter filed an opinion and award finding that an employer-employee relationship existed between the respondent and Coastal Tire and Auto Service. The Full Commission affirmed this award. An appeal to the Court of Common Pleas for Beaufort County followed, and the case was heard by the Honorable Wade S. Weatherford, presiding judge, who issued his order affirming the Full Commission and dismissing the appeal. This appeal followed.

The sole contention of the appellant is that the respondent was a casual employee and as such, not entitled to benefits under the Workmen’s Compensation Act.

In considering the foregoing question it must be kept in mind that the courts have generally considered it inadvisable to attempt to give a general definition of a “casual em*80ployee”, and each case must be decided largely upon its own facts.

George A. Smith, the owner of Coastal Tire and Auto Service, and the father of the respondent, in describing how his son worked stated:

“A. Well he worked spasmodically; whenever he had the time, he’d come down and work. He didn’t work eight hours a day such as most people do. When he had things he wasn’t doing at home or wanted to do otherwise, he would come down and work. He might work all day one day and two or three hours another.”

The father in describing his son’s employment testified that he did not have any regular schedule to work, like most men; that he didn’t come to work at 8:00 like everybody else; and he didn’t have to come to work any particular day or time and this was up to him, because he was a part-time employee.

In response to questions concerning the records pertaining to the prior employment of the respondent, his father testified as follows:

“Q. But you never did maintain any records on Matthew?

“A. Not on him, no, sir, because he was there so infrequently.

“Q. He was there so infrequently?

“A. Uh huh. I mean by that he wasn’t a regular — it wasn’t a regular schedule. When he felt like it and wanted to come down, why I’d — he could come down. That’s one reason we didn’t keep accurate records like we did the other employees.

“Q. You mean if he had something he wanted to do a given week, he might not come down ?

“A. That’s right. See, he was still going to school and he was too young to — to put in a full day’s schedule.”

The bookkeeper for Coastal Tire and Auto Service testified that in making the Employer’s Quarterly Social Security Return for the period in which the respondent was *81allegedly employed, she had overlooked including him as an employee, but this was corrected in a later return. In addition to the $4.18 payment on June 18, 1971, it appears from the other exhibits that the respondent was paid by Coastal Tire and Auto Service certain sums for special labor and cutting grass on March 22, 1969, and May 11, 1969.

It was stipulated by the parties that:

“The employment relationship was quite flexible. The claimant had no specified days or time when he was required to report for work. In essence, he could show up when he felt like it and work for as long or as short a period as he chose.”

“Employment is ‘casual’ when it is irregular, unpredictable, sporadic and brief in nature.” 1A Larson, Workmen’s Compensation Law, Section 51.00, p. 909. Casual employment is defined in Black’s Law Dictionary, Rev. 4th Ed., p. 275, as “(e)mployment at uncertain times or irregular intervals * * * by chance, fortuitously, and for no fixed time * * * not in usual course of trade, business, occupation or profession of employer * * * for short time * * * occasional, irregular or incidental employment. * * *”

Under our decisions a casual employee is excluded from coverage although the work being done is in the course of his employer’s business or occupation. Jolly v. Atlantic Greyhound Corp., 207 S. C. 1, 35 S. E. (2d) 42, and Benbow v. Edmunds High School, 220 S. C. 363, 67 S. E. (2d) 680.

The meaning of the term “casual” may be more clearly understood by referring to its antonyms, which are “regular”, “systematic”, “periodic”, and “certain”. It has been held that where employment cannot be characterized as permanent or periodically regular, but occurs by chance, or with the intention and understanding on the part of both employer and employee that it shall not be continuous, it is casual. 99 C. J. S. Workmen’s Compensation § 69, p. 287.

*82The only reasonable conclusion that can be drawn from the evidence in this case is that the respondent was not a regular employee of Coastal Tire and Auto Service, because he worked on a most irregular, spasmodic and sporadic basis primarily as he himself chose to do. The employer here had no control as to when and how long the respondent would work. When he did work, it was at uncertain times and irregular intervals and only for a short period of time. We conclude that the respondent was a casual employee, and as such he is not entitled to benefits under the Workmen’s Compensation Act.

The judgment of the lower court is reversed and the case remanded thereto for entry of judgment in favor of the appellants.

Reversed.

Brailsford and Littlejohn, JJ., concur. Lewis and Bussey, JJ., dissent.