*1 537 ” . . . We reversed the case and rendered a final
judgment opinion for here the reason that were we that there adjudication. not sufficient evidence to sustain the above
Except for the fact that the trial court did in its final adjudication quoted, decree make the last above there might good be a deal of merit that the the contention case should be remanded in trial order that court finding could make a of fact issue abandonment (cid:127)or moral unfitness. But we think final that the decree controlling actually held, as to what the trial court appellees and that the issue on which the asked for the adjudication already ease to be remanded has been appealed decided the decree from.
Suggestion of error overruled. McGehee, JJ., Hall, Lotterhos, G. Jand Holmes concur. Kemp. Surety Corp.
National v. May 11, 1953 No. 38593 64 2d 723 Adv. S. So. *2 Levingston Young appellant. Daniel, &Bisscll and & *3 appellee. Jones, D. W. T. John Smith *4 J. Arrington, appeal
This is an from the Circuit Court of the Second affirming County Judicial District of an Bolivar award Compensation ap- of the Workmen’s to Commission pellee, Kemp. Victor T. dispute,
The not in are as follows: facts, are appellee employed The in was June, the Skene 1949, Company, partnership composed Grin a E. Kent of W. July and his Mrs. Dakin. Mrs. aunt, R. M. On 18, 1950, conveyed Dakin her interest to her R. M. Dakin. husband, appellee The he was veteran and when was first em- ployed by Company Skene in re- Gin he June, was ceiving on-the-job-training program benefits under the provided by Readjustment the Servicemen’s com- Act, monly Rights.” known as I. This the “G. Bill of train- ing period two-year period ending extended for a about During period appellee training, 1,1951. June this gin erecting in assisted a new for the Skene Gin Com- pany, operations gin. and assisted At expiration Kemp having training period, become gin operator, Company, excellent Gin Skene or- der to retain entered into an oral contract of services, Kemp. agreement with This contract or yearly Kemp to the effect on was to be per for $250.00 basis furnished a the sum of month and was to be pro- to home which live. contract charge gin during vided that he was to full ginning repairs and make season such as were nec- essary jobs. During gin do other the dor- such mant, he was to do work he off-season, partners. directed to either do These other jobs principally carpentry plumbing, work, consisted of painting, general repair buildings work the farm respective partners. general Mr. Kent man- ager Company according Gin to the Skene ginning Kemp in order to have available at evidence, necessary regular employ- him season, it furnish *5 monthly appellee’s salary paid the ment. The Company. Skene Gin further shows The evidence Company, partners Mr. one the Kent, of Gin the Skene was a collector candidate for office of and tax the sheriff County primary August, of Bolivar the Democratic campaign In order for office, 1951. to further his this signs approximately painted six- he had some banners length teen These feet and three wide. banners feet hung to be over of the various towns were Bolivar the street Kent instructed County. Kemp, appel- Mr. July hang signs. Monday, up these 9, 1951, On lee, Kemp, proceeded, he was ordered to the as- do, with hang signs. of two On Tues- sistance day, other men, July up putting Pace, while banners at one appellee injuries Mississippi, the received as the serious required hos- fall, result electrical burns and a pitalization. only hearing
Kent witness testified at was the who attorney-referee. prepared Two statements before the attorneys signed one insurance carrier’s objection Kent introduced in over the were evidence, appellant’s attorney, policy also issued the insurance Upon attorney-referee carrier. evidence, this compensation. petition denied claim for for re- On finding attorney- reversed the commission view, upon appeal and awarded referee finding affirmed. Prom the circuit this court, its Surety Corporation, judgment, National the insur- appeals. ance carrier, injuries appellant argues ap- that the first Kemp,
pellee, did arise out of and Victor T. not Company. with the Gin course of his Skene appellee being at the re- His contention time the personal injuries about ceived his he was business candidacy furthering Kent Sheriff of W. E. nothing gin- County, doing pertaining Bolivar appellant ning a number of authori- business. The cites jurisdictions ties other supporting his contention. We authorities and have examined these others and find that impossible holdings. it is an task to reconcile the various *6 wording due, This in a number of to the instances, of analysis general statutes and final the various no rule is laid and each must case be determined its down, and own circumstances. facts compensation Chap.
Under the workmen’s law, 354, by Chap. 1948, Miss. Laws of .amended Laws 412, “ par. provides: ‘Injury’ 1950, Sec. 2, 2, means acci- injury arising dental accidental death or out and employment, par. the course . . .” In 4 of said “ ‘employee’ any person, including 2, Sec. means a minor lawfully unlawfully employed, whether or in the service any apprentice- contract under of hire or ’’ ship, implied. express pro- written or 4 or oral, Section ‘‘Compensation payable disability : vides shall for be or injury employee arising death of an from out of and employment, regard course without fault as injury.” the cause consistently
We held that have the workmen’s compensation given be law should broad and liberal con and struction that doubtful cases should resolved in be compensation. favor of Deemer Lumber Hamil Co. v. 2d ton, pany 634; Miss. 52 Lucedale Veneer Com 673, 211 So. Implement Rogers, 48 2d 148; v. Mutual So. Company, et al. 214 Pittman, Hardware v. Miss. 59 823, Myles Myatt, 2d 547; So. al. Sons, et Adv. S. v. 2d 390. So. on “Current Workmen’s Com- Horovitz, Trends ‘ ’’ ‘ says: pensation, pp. get away The trend is to 663-65, from earlier narrow or strict cases and to follow the more overwhelming weight recent liberal views. The of au- thority gives benefit of the doubt claimants on law distinguished questions. questions, as from fact And the weight authority urges trial commission- court or liberally to construe in favor of ers evidence claimants growing appeal is a and on there cases; tendency uphold findings even claimant modern they though doubtful, are are based the facts on which findings dis- which fact or to reverse weak, slender regard or which evidence, uncontradicted favorable, hiding general law or conclusions, reach unfavorable narrowly specific evidence construe facts, against and broad con- The rule liberal claimants. usually justified, se- especially acts as the struction is verely can with recover, individuals cut down amounts spread large num- over intent that recoveries groups larger of workers, cases and thus benefit ber of purposes acts for which the and to effectuate humane based commission awards enacted. Hence board or were up- words ‘out of’ are construction of the a liberal Any ‘rationally possible.’ reasonable held whenever the act or doubt as to whether in favor should be resolved arose out *7 policy dependent, employee of. the of or view of the the com- of workmen’s and liberal construction broad ’’ pensation law. Compensation 7, Yol. Text, Workmen’s Schneider’s employee 1660(a), “An a vol who, it is stated: as Sec. employer untary to his or another, accommodation scope employment, performs of his the services outside performing such . . . while services. not within act is But may scope employer enlarge extend the or an employee employment who, the direction and an superior employer orders he his to whose is his or of of subject, performs the duties of his usual services outside consequence performs employment, them employer employee, and relation of existence of the protection employment, is within incidental to the performing . . . Where such services. of the act while party employee performs di for a third services an employer employer, if relation his rection during the employee them to exist between continues period employer of such is under the services, liable compensation injuries employee act for sustained performing assigned although while the task to him so may party he be under the control third as to the ’’ details the work. Compensa-
To the same effect is Larson’s Workmen’s p. and in tion, ing Vol. Sec. find 1, 27.40, we 421, the follow- any person authority employee : “When directs an private to run some errand or do his some work outside private employer normal duties benefit of or superior, injury of that work com- course is pensable. . . . The technical reason hold- for these ings simply that, is whatever the normal course ployment may employer supervisory be, his staff power enlarge it liave within their that course as- signing they outside the tasks usual area. If do not as- sign strength employer-employee these tasks on the compensability depends, relation then what is authority assigned? the source which the task is practical any reason for the rule is that other view places employee in an dilemma: if intolerable com- he plies compensation protection; with order, he forfeits comply, gets by'these he if does not he fired. Tested sim- ple arguments, denying compensation the cases seem ’’ wrong. Compensation,
In 58 Am. Jur., Workmen’s 231, Sec. p. many . According it is stated: “. . authori- ties, entitled however, the injury arising for an out of and in the course of his per- when such was received scope formance work for outside *8 duty, employee expressly usual his but which the had been ordered to do someone authorized direct to him as to ” work; his . . . following The authorities hold that such acts are com- pensable : Supreme Moody Baxley, 2d the et al., v. So. compensa- affirming an award of Florida,
Court injured employee, to said: tion Compensation under “This suit the Workmen’s a employer operated a restaurant and Act. The owned Humpty Dumpty. operated the under name which was employed Moody, employer, as L. M. a brother of the was Baxley, manager Humpty Dumpty the Restaurant. employee, the and claimant, the was ployer in addition to his restaurant, a cook at as the hut, helped supplies buying for the do work the the cook, helper. general . and a . . restaurant was ‘‘ employer The owned farm which was' located County. nothing was Nassau At the time of the accident being produced used in restaurant. at the farm to be the day particular preceding night on which On employer instructed had his accident occurred Baxley, go manager, employee, and brother, night and install a on a door that farm lock which trip the been into. On accident occurred had broken this injured. seriously Baxley and n regular “Baxley’s get off from on time to his work working day but he continued at the that was 4:00 P.M. sup- jobs purchasing helping at odd and restaurant manager, plies left restaurant he with the until trip employer, go on which the direction injured. . . he .
£‘ appellant did that the not sus contends arising out the course accident tain employment. . . . of his Baxley By employment, his
“. . . reason his right employer had to di- assumed thing Baxley perform this errand incidental rect Moody, although it was not con- operation restaurant, nected with ’’ engaged. Moody enterprise in which business *9 support The court in of its decision cited the of case Metzger v. et Koefler, 235 N. where it al., W. was 802, employee acting held that the was within the course of his employment although foreign doing entirely he work regular quote: to his and duties, we compensation paid plaintiffs, “The award for to be they and which seek to have was made to the vacated, G-eorge fatally injured widow who was on Koefler, day, year prior 1929. 1, June On that and for about a employment plaintiff thereto, Koefler inwas Metzger, engaged painting who business aas con- and in tractor, that business from three four- employment painting teen men. Koefler’s to do Metzger’s work painting thereto in incidental the usual course Metzger business. On June 1, directed his ployees, with the foreman, assistance of of his another daily
to haul some after the usual furniture, working Metzger’s city on truck from hours, his resi- cottage, dence to a distant which his summer he and wife owned and desired to rent. Neither was en- furnish,and gaged furnishing renting in the business such cot- tages. The foreman selected Koefler assist him, given for that service Koefler credit his usual rate regular pay Metzger’s on the roll painting returning Metzger’s business. While truck cottage city garage, from his the accident occurred which . caused death. Koefler’s . . particular
“. . . The mere fact which act, Metzger, incidentally during course to Koe- employment, requested perform, fler’s him was un- customarily required employees or not usual, painting terminating did not result business, or sus- temporarily, existing pending of Koefler status employee Metzger paint- in the usual course of his ing point business. In other on the words, under con- only statutory definition sideration, excludes those injury, as to whom there does not at the time of exist, employment in the usual course of business al- employ- employer. leged other when hand, On the snch statutory not ex- does definition does ment exist, is tem- because which he service, clude an usually porarily performing* employer, re- not employees employment. quested When in such such service, it is sufficient that the exists, *10 injured, grows employee performing out when such an is employment.” and is his incidental to Nugent quote v. from case of Sand Co. nextWe the Ky. Hargesheimer, 2d 647: 71 S. W. 358, employed Hargesheimer, appellee, as was Lafe appellant, “The Company. by Nugent The a mechanic the Sand corporation president and mother, the resided with his employees occasionally his home there its were sent to property. jobs repairs on the do and make minor to odd always company’s time. a on On Sat- This was the done president morning urday September, the directed 1930, couple men to his a out one of foremen to take part tear the furnace and and have them down house parts. order new obtain information sufficient to some quitting time of the noon was the usual hour, which After Saturday, appellee and an- took the on the foreman work yard in the a residence, man there. While other dog Hargesheimer on ankle. the task was When bit company’s parties place returned to finished, appar- for the first aid administered and was business Hargesheimer ently slight time in wound. The weekly pay engaged added to his on this work he company paid for it. and was roll overtime, days long his and before arm became ill few he Within had become legs partially totally paralyzed his and so. per- dispute appeal became is he no There manently totally . . . disabled. (section 4880) un- accidents statute defines the
“The compensable injuries employee made are der which ‘ employ- arising his of and in the course of out those ’ doing say he the work ‘when act does not ment. The ’ employed perform. language intent are scope. Regardless judicial wider inclination, courts admonished are the statute itself to it construe liberally injured employee. in favor of the Section 4987, Kentucky Statutes. In Schneider’s Workmen’s Com- pensation 292, Sec. and the Law, 33 A. L. annotations compiled 1335, R. and 82 A. L. are R. numerous employees gone beyond scope eases in which had particular they perform, duties were voluntarily, injured, both under orders when and it they serving was held that as their were masters their injuries employment arose their out of and in the course Muncy, thereof. See Warfield Natural Gas v.Co. Ky. (2d) 213, 50 S. W. 543. The come from conclusions logical interpretation of the law. It clear that instant case, where directed employer, through go chief officer foreman, company’s and do a certain task and did he so with the paid company specially tools and was for that right he *11 work, was of within the orbit his compensation injuries by to sustained reason his obedience. appellant predicates
“But the its claim for relief from judgment principally upon ground own its de- parture. (section In its statement filed with the board Statutes), accepting provisions 4956, of the Work- Compensation engaged men’s it Act, declared it that was barges, ‘dredging, tug in the gravel business boats, sand and stevedoring,’ dealers and and maintains that its liability designated operations; confined was to the hence employees pri- when it working had its on a in a furnace engaged vate it was not residence in the business covered by acceptance. though Hargesheimer signed And its had by agreement presented appellant to him that their by relation was covered terms the act, nevertheless protection injured. not was under its when . he . . escape hold in “To this case could liability grounds dropping on the claimed would be of the the fable as in for the shadow, to reach
substance dog and the bone.” Bros, Nygaard 441, Minn. et al., v. Throndson rendering personal was an 370, N. W. who in service continued
service one the brothers opinion quote full. Throndson Brothers. We to review insurer, at of the the instance “Certiorari, the Industrial Commission. award early “During autumn of 1925 summer and late Nygaard employed Throndson, and Tom Hans was op- of Throndson were Bros., under firm name who, County. Nygaard, erating threshing outfit Ottertail testimony, according them was his own bagger called and whatever he was ‘to upon, help do take care of they anything, whatever around the machine, ’ During rainy put the machine week when to me. see fit Ashby up, went to Grant laid Tom Throndson threshing rig County inspect un- another Bros, an automo- had to be for sale. Throndson derstood temporarily out of commis- of their bile but it own, Nygaard Ford for the use of his own so offered the sion, paid trip along for his time as driver. He was went continuing during journey his usual, Ashby though threshing had continued. the same as severely Ashby, Nygaard cranking car at While injured by a ‘backfire.’ injury question arose whether the out
“The one is employment, and we are clear in the course of the correctly answered in the affirmative that it was 1923, does Section G.S. Industrial Commission. Compen- operation Workmen’s exclude from the ‘persons employment whose the time Law sation . in the usual course of the . and not . casual, op- employer. occupation’ in order to make But, *12 exclusionary employ- section, effect that erative the and not usual course ment must both casual be Percy employer. Vittum O’Rourke v. business and cases cited. 636, 207 N. Minn. W. Co., 251, may enlarge employer it case was said also that an scope employment; or extend the of the and that an ployee employer, performs at the direction of his who, beyond scope services consequence of his nsnal bnt employee the relation of and employment, protec- and incidental to the is within the performing tion while act such services. That is precisely. may Nygaard case It this well volun- journey Ashby. teered the use for the machine during But the fact remains, decisive, that the en- journey Nygaard tire remained Thrond- paid son Bros., was their under control, accord- ingly. personal journey service rendered on that solely pre-existing was referable to the and continu- ing relation of master aiid servant. So need not con- we trip sider whether the was undertaken in usual course employer’s occupation. inspect purpose Its was to threshing outfit offered for sale. It is not clear whether purchase contemplation to be made both the Throndson brothers or Tom alone. But that doubt important, is not Nygaard, it remains that as chauf- journey Ashby, feur for Tom Throndson on the con- tinued service Throndson Bros.” Battery Ignition The case of McDonald v. Grand & ‘‘appeal Service, N. Y. N. 605, 173 E. was an from 886, Appellate Supreme an order of the Division of the Court judicial department, May in the third entered 23, affirming an award of State Board made Industrial Compensation under the Workmen’s Law. Claimant was as an electrician the defendant, Grand Bat- tery Ignition proprietor Service, the sole of which By a was man named Muller. his direction claimant had doing been some work at home Muller’s and went out on Sunday to see him and obtain his direction toas com- pletion job. there, While direction Muller, attempted claimant to crank an automobile, which kicked fracturing back, his wrist. The carrier insurance con- tended that the accident did not out arise of and in the *13 employment. costs; with affirmed, of the Order
course ’’ opinion. no Winters, v.Co. Mutual Insurance In the Utica case doing business B. Folds was 2d one E. et 48 E. al., S. Company, covered was Motor which the Folds as one compensation He directed insurance. workmen’s company, employee to motor an Winters, B. John go doing, he so a well. farm and clean out While to his de- Georgia Supreme that his held killed. The Court was pendents uphold- compensation, and in were entitled ing the said: award, employer, thereof, owner as the sole
“The E. Y. Folds, gasoline engaged busi- business, ‘automobile was ’ gasoline farming. and automobile business ness and The op- interpret and owned was record, we business, Company. Workmen’s The Folds Motor erated as the apply Compensation farm how- not laborers; Act does Company, apply it since it Folds Motor did to the ever, employees not of the and was one more than ten company specifically exempted and the motor businesses, accept provisions took out of the Act and elected policy covering compensation .. . its business. insurance full Board were Director on and, review, “The company was to find that therefore authorized the motor Compensation operating Act; under the Workmen’s employ- contract of the claimant had a the decedent company; that, with motor ment company, it clean a sent well motor he was company’s he was service time, the motor pay. did not create a or new, to receive additional This employment, or otherwise. There casual another, only employment, which contract with contract one change company, or work done motor and such relationship paid change compensation ex- not would employee. isting and the between cleaning extra under such circumstances with well con- or a different not a contract new enlargement merely an extension or but tract, existing; already employment contract and of the enlargement existing such extension or contract kept cleaning de- act the well retained the cedent of the order of such claimant under the direct only ployer sphere or within the of his one limits company. motor contract with the *14 doing other extra the of such additional work with words, pay employment was incident of the contract with company; might the motor in some for to hold otherwise among cases—where the work distributed several was many lines of different contracts of em- work—create ployment as there different were lines of with work, and, every piece particular new for work outside work employee employed, which the would was new contract formed. We be think Director authorized find was employer employee that neither nor intended the for- change mation of a contract with each new such was—as revealed in the instant the character of case—in the work employer performed; by the directed to be and where such under the circumstances killed here was acting while under company,' the orders of motor his (cid:127) dependents compensation.” are entitled to general For a see discussion, Anno., A. L. R. 378. opinion Under above authorities, we are that undisputed under the time facts Kemp, this case that at the injuries, his fulfulling received he was his contract Company. with Admittedly hire Skene Gin Kent political for a candidate was per- office this was a matter far as he sonal Kemp, concerned, but'as for doing what he was ordered to general do he Company, manager employer, Skene Gin his regular salary paid doing. for he so Under these injuries we circumstances, hold that his arose out of and of his in the course within meaning compensation compensable. law and were argued appellee It next that Kemp was not cov- policy, ered under the insurance coverage was lim- policy ginning operations. ited Appellant policy, it shows declaration contends that the Mississippi, operations ginning in “Skene, covered opera- Mississippi;” that the in the State of elsewhere “ operations gin as: cotton insured were classified tions —during ginning seasons,” etc. and dormant both the April policy issued on that the
The record shows paid premium which was was $264.00, 7, 1951; that the payroll Com- of the Skene Gin based on the total annual pany, salary appellee. the annual and included appellant question for a calls construc- raised compensation provisions of the workmen’s tion liability law with reference of insurance carriers. follows: Secs. and 33 are as compensation, Security payment 32. “See. (a) liability: employer under An liable Insurance of payment pay shall act to insure this compensation by a carrier authorized insure such such liability this state unless such shall ex- empted doing from so the commission.” Every Policy Regulations. (a) Insurance 33.
“Sec. *15 compensation herein of the insurance for the contract liability, against provided therefore, be shall or for, provisions subject the act, made to this to be deemed provisions inconsistent with act be thereof shall and grant be construed to full cov- Such contract shall void.' liability according erage under and of all of the assured provisions notwithstanding any agree- act, of the the parties contrary ment of the the unless the Insurance Department by specifically theretofore has written order policy part consented to of a the issuance on a of such liability. . . .
“(b) any employer: In Substitution carrier for employer where the case not a in order self-insurer, liability compensation imposed by that the may act this effectively discharged by employer, be most respect in order that the administration of act this liability may such be facilitated, the commission shall discharge, by provide for the regulation the carrier for snob, obligations employer, of the and duties of snob imposed by act respect liability, ployer upon this such proper employer, in order considers as it purposes provisions For such of this act. effectuate (1) employer knowledge occur- of the notice to or of an knowledge rence of the shall be notice to or employer commis- jurisdiction (2) carrier, jurisdiction any be this act shall or court under sion requirement by (3) any the commission carrier, and finding, compensation any any or order, court under upon binding the carrier same decision shall upon employer.” extent manner and to the same quoted purpose sections, addition to these policy legislature enacting of the com- workmen’s pensation compensation law with reference to is stated provide insuring the title —“to methods of and secur- ing payment of such ...” language quoted plain of the sections are unambiguous and need no construction. Wilson v. Y. & M. V. R. Co., Miss. 424, So. 2d 313. Sec. 32 re quires payment to “insure of such com pensation provides a carrier.” Sec. 33 that insurance policy grant “shall be construed coverage full of all liability according pro assured under and to the . . Department visions of the act has theretofore . unless the Insurance specifically written order consented policy part to the liability.” issuance on a of such It Department is conceded that the Insurance did not policy consent to the issuance part on a of the lia bility, coverage therefore, was not limited. Under the above employer’s sections, liability to pay compensation to the obligation became the of the insurance liability carrier, the being carrier co-extensive with Maryland employer. that of the In the case of
Casualty
Co. v. Industrial Commission of Wis-
rehearing,
consin, on
(cid:127)cal in There its effect to Sec. 33 of our law. the Court said: compensation (Chap. study
“A
act
of the workmen’s
Stat.)
respect
102
with
to insurance
convinces us that
statutory
more than
scheme was intended to do
merely protect
employer against liability
on account
injuries
quite
employees.
evi-
sustained
purpose
pay-
guarantee
dent
of the whole
scheme is
compensation
ment of
with
accordance
the terms of
injured employee
the act to the
.
act re-
.
. That the
quires,
special permission by
in the absence of
the Indus-
every policy insuring against
Commission,
trial
compensation
liability
cover-
for workmen’s
shall
its
age
provisions
with the
of the statutes.”
co-extensive
Commission,
76,
Also
v. Industrial
Wis.
see Werner
(1933).
In
v.
the Court said:
compensable
say
the em-
that if the
here
liability
ployer,
the carrier. Section
attaches to
A.),
(same
F.
inter alia,
Fla. Statutes
S.
440.38,
Compensation.
Security
(1)
provides:
Every
‘440.38.
payment
compensa-
shall secure
chapter
(a) by insuring*
keeping
under this
tion
—
compensation
any
payment
with
of such
stock
insured
company
exchange,
company
or association or
mutual
or
.
state,
. .
when
So,
business
to do
authorized
a carrier
tion
payment
compensa-
to insure
assumes
pay
employer,
may
it is bound to
whatever
against
employer.”
adjudged
lawfully
See also
be
Utica
supra;
Winters,
al.,
Ins. Co. v.
et
Mutual
Bates v.
557 appellant liability of the car- The contends that the policy, by limited the the the rier is terms of provisions policy we not control. To this do applicable provisions agree, of the workmen’s as automatically written are into law operation policy by Cowan, law. Ins. Co. v. 111 Miss. Phoenix Ins. 96 Miss. 453, Co., 223, Bacot v. 746; 71 So. Casualty Ins. 729; Co. v. Skinner, 50 So. Commercial 2d 225. Miss. So. 533, says: appellant, in its “Under hold- brief,
ing by below and the Court the award made the Com- an mission, insurer is not entitled to know the business engaged, having in which the assured is but is liable, policy, regardless once written a or activ- Business ity engaged in which the at time of his injury.” In answer to this statement, the record shows voluntarily accepted premium appellant that the April policy appel- 7, 1951, on and that issued its July injuries more than lee’s occurred three appellant evidently later. The with months satisfied policy, made risk, as it no effort to cancel the as provided 33(a) Sec. the act. assignment argued attorney-
The last is that admitting referee erred in in evidence the statement and supplementary statement of E. Kent. The W. record prepared by shows that these were statements one attorneys appellant, for the and this was not contradicted. present The record also E. Kent shows W. hearing length and was cross-examined at counsel appellant. provides: for the Sec. 22 of the act Commission, (a) “Procedure before making investigation inquiry conducting hearing, or or commission shall not be bound common law or statu- tory rules of evidence, or technical or formal rules except provided procedure, may act, this or but investigation inquiry make such or conduct such hear- ing rights manner best such to ascertain the parties . . .” judg- assignment, and the merit in this is no There therefore affirmed. below is ment of the court Affirmed. justices dissenting; all concur.
Roberds, J., other dissenting. J., Roberds, *18 policy activity described the business or insurance
The employees partnership covered the insurance operation Skene, ,” that of “Cotton Gin Missis- as — sippi, particularized work and then involved in that operation. injured by coming into contact a
Claimant with upon pole endeavoring while live electric wire electric political to attach thereto a banner so as to stretch such high banner several feet across a street in Pace, Mis- sissippi. Chapter (2), injury
Under 354, Section to be com- pensable injury “arising under the Act, means out of employment” and in the course of covered in- surance. cry
It is a far working gin from aat in Skene and climbing pole an 'electric by logic in Pace. Indeed, and reasons, slightest there is not the connection between majority opinion the two recognizes activities. The places liability and solely ground of the carrier on the claimant, that the for what he deems sufficient reason, willing go outside and do this political Mr. liability work for Kent. Such a test of is only vague, practi- not indefinite and uncertain but is cally without limit. How is an insurer to know what charge liability? By rate to or the limit of that test there liability regardless resulting of the hazard from the activity Suppose which the from results. Mr. Kent upon go fishing dangerous desired waters and claim- willing row the ant was boat By and had drowned? adopted test insurance carrier would have been just Many unfair situations can be conceived liable. even tbat. so, Indeed, more than unreasonable, support policy, the assertion. tbe facts of this case yardmen detailing ginning operations, mentions involving and some other no haulers, duties, seed pole unusual hazards. the case at bar we a have carrying voltage high goes up electric wires, claimant pole this contact and comes in with what is termed in perceived the record a “hot wire.” How can it be anticipate this carrier insurance could ever the insurance would cover situation of that kind? Law, unless the arbitrary ought result of disregard statute, not to all reason and common sense. Even in upon the extreme cases cited and relied
precedent majority opinion, some of them in- do slight volve some activity causal connection between the covered producing insurance and that the in- jury. For Nygaard instance, v. Throndson Broth- case, ers assisting claimant threshing grain; wet stopped weather activity had and he went with his em- ployer inspect threshing machine with the view to purchase employer. thereof There is, course, *19 slight a connection between the two activities. How- it ever, will be noted that in all of the cited cases the
injury activity simply resulted from one outside — going perform single temporary aside to some or outside political activity task. Here claimant started this for July Kent primary August Mr. 8. The first 7. political Claimant, then, was to his continue assistance days, thirty expected no and, Mr. Kent doubt, at least primary nominated to survive the first be in primary three weeks second some later. As matter general appears it of fact he was elected sheriff at the engagement in November. So that his election political him in to assist claimant cam- services paign to consist of one or but was for was not two acts period of even if we time, itself, a considerable authority accept liberal extreme, cases so-called, 560 majority opinion, distinguishes this case
cited from them. holding contrary to the con- are scores of
There
cases
majority opinion.
reached in
Some
clusion
the able
Phillips
(Me.),
v.
142
863;
them are: Paradis’
A.
Case
(Ill.),
Burnett v. Palmer-
61 N.
681;
Industrial Com.
Lipe
E.
(N.
(2d)
C.),
Kramer
507;
204
E.
Paint Co.
S.
(Cal.),
Elliott v.
ON SUGGESTION
July
35 Adv.
Appellant, National solely personal Kemp’s injury from done resulted work partnership, Kent, not for the for an individual, Company, employing which it said is Gin Skene entity But under the workmen’s act. undisputed pecu- position disregards the facts as to the *20 Kemp nature of the contract between and Skene liar Gin only Company. gin provide The could six or seven ’ exclusively gin, obtain at order to so, work the months employ company competent gin operator, to had the a per salary year-round Kemp of $250.00 on a basis provided employment The month. contract gin, Kemp repairing operating would by the to addition any assigned might perform himto duties which company. gin partners In other the either of employment scope was two-fold: the of his words, gin, any operate was directed and to do which he tasks by salary paid perform partners. was either of the His injury by year partnership. for Hence the the entire the con- suffered was him under claimant incurred employment itself, tract of and under direction employer. performance As matter of of duties fact, through assigned partnership, one of claimant opera- partners, gin company’s of benefit to the practical performance of such in the sense tions company made tasks available to the services pecu- operation gin. claimant actual The injury Kemp’s nature liar of this contract resulted in arising out of and in the of his course contracted ployment. doing particular
And to the extent that the work he injured specified when he was not contract, clearly also comes dis- within the numerous cases original majority opinion recognizes cussed right employ- enlarge the course of by assigning ment tasks The the usual area. outside employer-employee relation was the the author- source of ity assignment for the of the task which claimant doing injured. when he was dual cases Kemp not are employers, because relevant, was not two by only partnership. one, but (cid:127) Suggestion of error overruled. Kyle, Arrington,
Hall, Lee, Holmes, and JJ., concur. *21 dissenting: J., Lotterhos, original tine consideration I concurred case,
In of this majority opinion affirming judgment with the of the granting compensation appellee the for below, court very injuries. My his largely conclusion at that time based was peculiar on the contract of disclosed appears although Kemp, appellee, this record. It that, monthly salary was an annual basis a partnership, operated yet gin, the a cotton his con- provided performance tract for the of discon- duties gin gin nected from the the when the off-season, not in use. It, therefore, seemed to me that he was ployed by partnership might the for whatever duties assigned away fully gin, himto from the and com- pletely as was for those the he connected activities with- gin. partnership It was reasoned that, since the though nominally covered the act, gin company designated cotton and so the insurance policy, Kemp, being partnership of and being obliged under contract his to do whatever work partners during individual directed off-season, acting employment during in the of course all work- ing regardless time, nature the work done. partnership other gin words, covered was not a com- pany only, company operating gin but for a cotton general furnishing services to the members firm.
Having partnership concluded that the liable appellee particular act, under this be- situation, special employment, cause contract of I next con- position Surety appellant, sidered the Cor- National poration, partnership policy which insured the under a expressly ginning operations. limited to If we look to policy company alone, the insurance course, cannot process putting be liable for an incurred up political signs partner entirely for an individual operation gin. compen- from disconnected of But (Sec. 33(a), Chap. provides 1948; Laws of act sation 1942) insurance Code of contracts 6998-39, Sec. subject made deemed to he thereunder “shall be provisions provisions thereof inconsist- act, this and that such ent with the act shall be ‘‘ contracts void”; coverage liability grant full all shall be construed to according provisions of under and to the assured any notwithstanding agreement parties to act, ” contrary part- . . the nership, . If the assured, unless *22 appellee, it is liable to then to follow that seems granted coverage appellant is deemed to have full of that liability. my regardless rights,
It follows, view, of what that, any, appellant might against part- have, if nership, the insured recoup
to its of virtue the be- loss, contract partnership expressly covering gin oper- it tween and the only, statutory provision, the claimant, ations empowered the is company
to collect from the insurance what- compensation may ever he be entitled to receive from his partnership. employer, the
My original being conclusion the the consideration reasoning give outlined result the did above, I not particular weight in this connection to the line of cases opinion. appellee the felt cited in I had not been scope duty directed to turn aside from the perform usual his private employer, incidental, service for his injured perform- as in those but that he was cases, while they ing being his usual off-season duties, whatever work partners the individual desired. appears light appellant’s sug- now me,
It the gestion error, even on that, the basis which has been liability partnership herein, there is no discussed appellee injury. for his It to ployed is true that he em- gin ginning at the
to work and to season, partners assigned work whatever individual tasks compensation in the off-season, him and that entire paid by partnership. it However, now seems partnership, clear to on this me, record, that the subject was covered to the act, was actually engaged gin only. in the business It appellee necessary business; in that as it was but, ploy appellee on an annual basis and there no gin work part- for him to do at the in the off-season, nership arranged partners during for the to use him time. Kemp, appellee, working gin
While at the any doing work whatever that had some connection with partnership he business, was, course, covered. But, when the end of the nothing season came, there was further for him to do in furtherance of the firm business, employment then he left that for a time, and entered into performance designated persons for services partnership. who were members It cannot be, my Kemp, appellee, mind, that, when set forth on the project hanging large political signs banners or over streets of various for towns Kent, an individual, partner gin who awas firm and who was at the Kemp, time candidate sheriff, he, was in the course employment partnership. being paid with the He was working it firm, but he was true, and was for, of, Kent, the candidate for sheriff. *23 partnership, He had been loaned to Kent paid appellee’s had for services, but did not need them period year. at that of It was Kent who received appellee’s him benefit services; who instructed what supervision do, and where and when; and who had Kemp performance control over duties, his while engaged aiding political in campaign. During he was Kemp completely that time separated severed and scope from course and partner- work with the ship. summary of the line of original cases cited in our
opinion, quoted from Compen- we Larson’s Workmen’s Jurisprudence from sation Law and American on the (Sec. subject. quoted from former text We tbe same 27.40) any authority person in directs as follows: “When employee private an errand or do some work run some private normal for tbe benefit of tbe outside duties bis employer injury superior, in tbe course of that work compensable.” paragraph is of tbe text note tbe But, immediately following language: that closely dis- questions must be related to one
“Two this basically they upon principles tinguished, dif- turn since employment. question dual first is tbe ferent. Tbe alternately employee may, regular thing, work An as a yardman janitor printing shop tbe at and as a a in a emplojmr’s question dual is one of Tbe here residence. jobs possibility separating tbe two with tbe status, bolding compensation cov- that one of them not under is problem, erage. problem present differs from tbe This only regularly here that tbe job, private one and tbe incident.” task is an unusual say see dual Now let what Larson has to about us ployment. subject (Sec. 48.50) is His comment on this as follows: par- employment, there is true dual and tbe
“When clearly industry injury ticular which tbe occurs can be theory, only compensation logical, it is under identified, industry tbe cost. should bear (al- companies So, when a hired two watchman was though only by one), form tbe time of tbe tbe contract was made company acting whose service he was at tbe exclusively held for cost of that liable tbe injury. way buildings, if be bis But bad been on between impossibility identifying single employer tbe being finding joint one lia- served would necessitate a ' bility. deliveryman engaged pack- Similarly, a to deliver ages employers held exclusive two to be in tbe having completed tbe one, when, service deliveries for devoting entirely himself tbe interests other, delivering packages. tbe But, first bis *24 deliveryman obviously, going along the street with the packages employers joint both would have to held a be employee. dual-employment role should resorted be only complete employ- when the identification of the injury single employer ee’s at the time activities with a beyond dispute. weighing is There should be no of rela- particular employers, tive value of services to different quibbling or any about borderline activities, if is since, there joint
evidence of added service, to the conceded fact employers, great of both there be no can imposing liability employ- unfairness shared on the ers.” my
It is view of this case and its facts that there is a complete Kemp’s identification of activities the time injury political campaign, with Kent’s and not with partnership, Company. business Skene Grin “quibbling This no about borderline activities,” such as Larson excludes. original opinion quoted language
Our also from Amer- Jurisprudence (58 ican Compen- Am. Jur., Workmen’s p. 738). paragraph sation, Sec. the last Note section: injury
“In the case of to an of a business or enterprise performing, by industrial his while direction of employer superior, primarily or some service private or supe- individual benefit of such or of person, rior, some other rather than for the benefit enterprise, of such some take the authorities view that injury may, such an under some circumstances, com- pensable arising out of and in the course of the ployment, contrary, right while others hold to the and the usually par- has been denied where the entirely ticular services are enterprise. unrelated to the business ’’ Kemp’s being It to me that seems services rendered at “entirely the time of his were unrelated to the enterprise” partnership. business of the insured
.567 *25 injury, compen- requires order to be act Tlie “arising of and in the course of be one out sable, must Obviously, employment.” provision it means that employment in the course of must arise out and be compen- charged payment person to with injured appellee he while was In this case, sation. not he Kent, in the course while Company. employment by Skene was in the course of Gin hanging political he not Kent; banners for He was any gin company. performing I do not service legislature think ever intended the result reached original opinion. in our my judgment suggestion of it that the
Therefore, respectfully accordingly, sustained, error should be I and, majority from the dissent decision. dissenting: J.,
Kobekds, dissenting my original opin- stated For the reasons foregoing forth ion and additional reasons set by Judge respectfully from Lotterhos, dissent I dissent Judge majority holding McGehee, in this case. Chief joins herein. Justice, v. rel. et ex al.
State, Quinn, May 11, 1953 31 Adv. 711 No. S. So. 2d