National Sur. Corp. v. Kemp, 38593

Decision Date11 May 1953
Docket NumberNo. 38593,38593
Citation217 Miss. 537,64 So.2d 723
CourtMississippi Supreme Court

Levingston & Bizzell, Cleveland, Young & Daniel, Jackson, for appellant.

Smith & Jones, Cleveland, for appellee.


This is an appeal from the Circuit Court of the Second Judicial District of Bolivar County affirming an award of the Workmen's Compensation Commission to the appellee, Victor T. Kemp.

The facts, which are not in dispute, are as follows: The appellee was employed in June, 1949, by the Skene Gin Company, a partnership composed of W. E. Kent and his aunt, Mrs. R. M. Dakin. On July 18, 1950, Mrs. Dakin conveyed her interest to her husband, R. M. Dakin. The appellee was a veteran and when he was first employed by Skene Gin Company in June, 1949, he was receiving benefits under the on-the-job-training program provided by the Servicemen's Readjustment Act, commonly known as the 'G. I. Bill of Rights', 38 U.S.C.A. Sec. 693 et seq. This training period extended for a two year period ending about June 1, 1951. During this period of training, the appellee assisted in erecting a new gin for the Skene Gin Company, and assisted in the operations of the gin. At the expiration of the training period, Kemp having become an excellent gin operator, the Skene Gin Company, in order to retain his services, entered into an oral contract of employment with Kemp. This contract or agreement was to the effect that Kemp was to be employed on a yearly basis for the sum of $250 per month and was to be furnished a home in which to live. The contract provided that he was to be in full charge of the gin during the ginning season and to make such repairs as were necessary to the gin and to do other jobs. During the dormant, or off-season, he was to do such work as he was directed to do by either of the partners. These other jobs principally consisted of carpentry work, plumbing, painting, and general repair work on the farm buildings of the respective partners. Mr. Kent was general manager for the Skene Gin Company and according to the evidence, in order to have Kemp available at the ginning season, it was necessary to furnish him regular employment. The appellee's salary was paid monthly by the Skene Gin Company. The evidence further shows that Mr. Kent, one of the partners of the Skene Gin Company, was a candidate for the office of sheriff and tax collector of Bolivar County in the Democratic primary of August, 1951. In order to further his campaign for this office, he had some banners or signs painted approximately sixteen feet in length and three feet wide. These banners were to be hung over the streets of the various towns in Bolivar County. Mr. Kent instructed Kemp, the appellee, to hang up these signs. On Monday, July 9, 1951, Kemp, as he was ordered to do, proceeded, with the assistance of two other men, to hang the signs. On Tuesday, July 10, while putting up one of the banners at Pace, Mississippi, the appellee received serious injuries as the result of electrical burns and a fall, which required hospitalization.

Kent was the only witness who testified at the hearing before the attorney-referee. Two statements prepared by one of the insurance carrier's attorneys and signed by Kent were introduced in evidence, over the objection of the appellant's attorney, also the insurance policy issued by the carrier. Upon this evidence, the attorney-referee denied the claim for compensation. On petition for review, the commission reversed the finding of the attorney-referee and awarded compensation and upon appeal to the circuit court, its finding was affirmed. From this judgment, the National Surety Corporation, the insurance carrier, appeals.

The appellant first argues that the injuries of the appellee, Victor T. Kemp, did not arise out of and in the course of his employment with the Skene Gin Company. His contention being that at the time the appellee received his injuries he was about the personal business of W. E. Kent in furthering his candidacy for Sheriff of Bolivar County, and doing nothing pertaining to the ginning business. The appellant cites a number of authorities of other jurisdictions supporting his contention. We have examined these authorities and others and find that it is an impossible task to reconcile the various holdings. This is due, in a number of instances, to the wording of the various statutes and in the final analysis no general rule is laid down, and each case must be determined by its own facts and circumstances.

Under the Workmen's Compensation Law, Chap. 354, Miss. Laws of 1948, as amended by Chap. 412, Laws of 1950, Sec. 2, par. (2), provides: "Injury' means accidental injury or accidental death arising out of and in the course of employment, * * *.' In par. (4) of said Sec. 2, "employee' means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied.' Section 4 provides: 'Compensation shall be payable for disability or death of an employee from injury arising out of and in the course of employment, without regard to fault as to the cause of the injury.'

We have consistently held that the Workmen's Compensation Law should be given a broad and liberal construction and that doubtful cases should be resolved in favor of compensation. Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Lucedale Veneer Company v. Rogers, Miss., 48 So.2d 148; Mutual Implement & Hardware Company v. Pittman, 214 Miss. 823, 59 So.2d 547; Miles & Sons v. Myatt, Miss., 61 So.2d 390.

Horovitz, on 'Current Trends in Workmen's Compensation,' pp. 663-665, says: 'The trend is to get away from earlier narrow or strict cases and to follow the more recent liberal views. The overwhelming weight of authority gives the benefit of the doubt to claimants on law questions, as distinguished from fact questions. And the weight of authority urges the trial court or commissioners to construe evidence liberally in favor of claimants in compensation cases; and on appeal there is a growing modern tendency to uphold findings for claimant even though the facts on which they are based are doubtful, slender or weak, and to reverse findings of fact which disregard favorable, uncontradicted evidence, or which reach unfavorable general conclusions, hiding the law or the specific facts, or which construe evidence narrowly against claimants. The rule of liberal and broad construction is especially justified, as the acts usually severely cut down the amounts individuals can recover, with the intent that the recoveries be spread over a larger number of cases and thus benefit larger groups of workers, and to effectuate the humane purposes for which the acts were enacted. Hence board or commission awards based on a liberal construction of the words 'out of' are upheld whenever 'rationally possible'. Any reasonable doubt as to whether the act or injury of the employee arose out of the employment should be resolved in favor of the employee or dependent, in view of the policy of broad and liberal construction of the workmen's compensation law.'

In Schneider's Workmen Compensation Text, Vol. 7, Sec. 1660(a), it is stated: 'An employee who, as a voluntary accommodation to his employer or to another, performs services outside the scope of his employment, is not within the act while performing such sercices. * * * But an employer may enlarge or extend the scope of the employment and an employee who, at the direction of his employer or of his superior to whose orders he is subject, performs services outside the duties of his usual employment, and performs them in consequence of the existence of the relation of employer and employee, and as incidental to the employment, is within the protection of the act while performing such services. * * * Where an employee performs services for a third party by direction of his employer, if the relation of employer and employee continues to exist between them during the period of such services, the employer is liable under the compensation act for injuries sustained by the employee while performing the task so assigned to him although he may be under the control of the third party as to the details of the work.'

To the same effect is Larson's Workmen's Compensation, and in Vol. 1, Sec. 27.40, p. 421, we find the following: 'When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable. * * * The technical reason for these holdings is simply that, whatever the normal course of employment may be, the employer or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compensability depends, then what is the source of authority by which the task is assigned? The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired. Tested by these simple arguments, the cases denying compensation seem wrong.'

In 58 Am.Jur., Workmen's Compensation, Sec. 231, p. 738, it is stated: '* * * According to many authorities, however, the employee is entitled to compensation as for an injury arising out of and in the course of his employment when such injury was received in the performance of work for his employer outside the scope of his usual duty, but which the employee had been expressly ordered to do by someone authorized to direct him as to his work; * * *.'

The following authorities hold that such acts are compensable:

In Moody v. Baxley, 158 Fla. 357, 28 So.2d 325, 326, the Supreme Court of Florida,...

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