Murphy v. Gaylord
| Citation | 28 S.W.2d 348 |
| Parties | MURPHY v. GAYLORD. |
| Decision Date | 31 May 1930 |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Weakley County; R. A. Elkins, Judge.
Proceeding under the Workmen's Compensation Act by D. M. Murphy, employee and claimant, opposed by A. W. Gaylord, employer. Petition for compensation was dismissed by county court and circuit court, and claimant appeals.
Affirmed.
J. W. Rankin, of Martin, for appellant.
D. W. Harper, of Martin, for appellee.
The county court and the circuit court dismissed a petition for the allowance of compensation, and petitioner has appealed. He lost a little finger while oiling a concrete mixer while in the employ of the defendant, working by the hour, in connection with the erection, or rebuilding, of a garage owned by the defendant. The defenses interposed were that the employment was casual only and not in the usual course of the business, or occupation, of the employer; that the defendant was not the employer of five or more men at the time the accident occurred; and that no written notice was given within thirty days.
The judgment of the trial court contains no specifications of the grounds of his action. The question here is whether or not the record contains any material evidence to sustain any one or all of the defenses interposed. If either is sustained, consideration of the others becomes immaterial.
Section 6, subd. (b), of Workmen's Compensation Act, chap. 123, Acts of 1919, provides that the act shall not apply to "any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer."
As already indicated, Gaylord, the employer, was not engaged in the business or occupation of building. The particular work on which the petitioner was engaged at the time of his injury was an incident of the construction, or reconstruction of a building owned or controlled by the employer, the work on which was being done by the employer apart from and independent of the usual course of his trade, business, profession, or occupation.
It is said in Re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363, that: ...
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...facts and statutes involved in each of them. The rule laid down in the Lamont case is not an arbitrary rule. The cases of Murphy v. Gaylord (Tenn.) 28 S.W.2d 348 Myer v. Davis (Okla.) 18 P.2d 869 discussed in the Lamont case are very much in point. The employment performed by claimant was i......
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...construction work is not within the usual course of the business of an employer who is not a contractor or a builder. Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348; Gibbons v. Roller Estates, Inc., supra; Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526; cf. United States......
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...Hotel Company, (Mich.) 166 N.W. 878; Association v. Gilleland, (Texas) 291 S.W. 197; Oliphant v. Hawkinson, (Iowa) 183 N.W. 805; Murphy v. Gaylord, 28 S.W.2d 348; Gibbons Roller Estate, Inc., 42 S.W.2d 198; Carsten v. Department, 19 P.2d 134; Edwards v. Department of Labor, 262 P. 973; Hend......
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McDonald v. Dunn Const. Co.
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