GENERAL ACCIDENT FIRE & LIFE ASSUR. CORP.

V.

PRO GOLF ASSN.

40 Ill.App.3d 592, 352 N.E.2d 441 (1976)

KARNS, PRESIDING JUDGE

The insurance policy in question provides certain coverage to members of the Professional Golfers Association. Gerald Hall, a professional golfer employed by the defendant-appellee Taylorville Community Pleasure Driveway District (hereinafter District), a municipal corporation, is an insured member afforded coverage under the policy. The issue presented for review concerns the applicability of a policy exclusion as to "bodily injury to any employee of the insured arising out of and in the course of his employment by the insured." The lower court determined this exclusion inapplicable, and the issue presented for review is whether the judgment of the lower court is against the manifest weight of the evidence. Also assigned as error are certain rulings of the trial court on the admission of evidence.

On June 15, 1973, Bradley Martin, age 13, was present at the golf course owned by the District to participate in junior golf league play. Gerald Hall, the golf professional employed by the District, asked a group of boys including Martin if one of them wished to retrieve or "shag" golf balls to be hit during a golf lesson Hall was to give. Martin agreed to do so. There was no conversation regarding compensation at the time. Hall testified that Martin could be compensated in some manner, - either through golf instructions or money or hot dogs or whatever."

During the course of the lesson, a golf ball hit by Hall hit Martin in the eye. Martin instituted an action for damages for the injury to his eye, naming as defendants Hall and the District.

It is General Accident's position that Martin was an employee of Hall at the time of the accident and that the employee exclusion of its policy is applicable to the occurrence. The defendants argue that Martin was either an independent contractor or volunteer, and was not an employee within the meaning of the policy of insurance.

The exclusion in question is commonly referred to as the workmen's compensation exclusion. It is a standard provision of liability policies. Its purpose is to distinguish an employer's liability to his employees from liability to the general public, since the extent of the employer's liability to his employees is as provided by workmen's compensation statutes. It would be costly and redundant to insure against liability to employees under general liability policies of insurance.

We are directed to cases involving an application of the Workmen's Compensation Act to determine whether

Martin was an employee of Hall at the time of occurrence. In O'Brien v. Industrial Commission, 48 I11.2d 304, 269 N.E.2d 471 (1971), the court observed that the determination of a person's status as an employee or independent contractor "is one of the most vexatious and difficult to determine in the law of compensation." The court reviewed the customary tests of master-servant, that is, right to control the manner of doing the work; manner of payment of compensation; right to discharge; and furnishing of material, equipment or tools. Applying these tests to the instant facts, appellant argues that Martin was an employee of Hall and the contrary decision below was against the manifest weight of the evidence. Specifically, support can be found in the record that Hall had the right to control the manner in which Martin was to pick up the golf balls as the ball that struck Martin was intended as a signal to position him farther back on the practice range; that equipment, a bag and golf cart, was furnished Martin by Hall; that Martin was to be compensated in some manner as he had been compensated in the past for doing the same work, which required little skill or judgment; and that the record, while silent, supports the clear inference that Hall had the right to discharge Martin.

Appellees argue that the facts, which are not in substantial dispute, support with greater force the trial court's finding that Martin was not an employee. There was no evidence of any agreement as to compensation. Hall sometimes gave instruction or food to the boys who "shagged" golf balls, but there was no express understanding as to compensation. While the chore was a simple one, Martin was not instructed or directed in the manner of performing the task, and he was hired to produce a result, viz., to pick up the golf balls; no control was exercised over him, and the ball that struck him was not directing him in the manner of performing the work but was simply a signal for him to back up since balls were to be driven farther down range. No equipment other than a bag in which to place balls as picked up was required to perform the task.

We believe the evidence is susceptible of different inferences. The question is one of fact for the court's determination, and we cannot say that the decision of the trial court is against the manifest weight of the evidence.