Nowlin v. Lee, 44555

• Decision Date: 23 October 1967
• Docket Number: No. 44555,44555
• Citation: 203 So.2d 493
• Parties: G. G. NOWLIN, Employer-Appellant, v. Herman LEE, Claimant-Appellee.
• Court: Mississippi Supreme Court

Page 493

203 So.2d 493

G. G. NOWLIN, Employer-Appellant, v. Herman LEE, Claimant-Appellee.

No. 44555.

Supreme Court of Mississippi.

Oct. 23, 1967.

Breland & Whitten, Sumner, for appellant.

Charles C. Finch, Ted Lucas Smith, Batesville, for appellee.

GILLESPIE, Presiding Justice:

Claimant sustained injuries while working for the employer in Tallahatchie County, Mississippi, and filed a claim for benefits under the Mississippi Workmen's Compensation Act. From adverse rulings by the attorney referee, the Workmen's Compensation Commission and the Circuit Court of Tallahatchie County, the employer prosecutes this appeal.

Doing business as G. G. Nowlin Construction Company, the employer engages in developing real estate and in the sale of real estate in Memphis and Shelby County, Tennessee, where he lives. In 1964 the employer did no construction work for others, but erected a warehouse for himself in Memphis. He also owns a tract of land in Tallahatchie County, Mississippi, which he leased to another for farming. He purchased two bulldozers for use in clearing the land. As land was cleared it was turned over to the lessee who planted it in soybeans. Employer received as rent a specified cash sum or one-fourth the value of the crop, whichever was the larger. In June, 1964, the employer hired the claimant to operate a bulldozer in clearing this land. It was also claimant's duty to maintain the machinery which he operated and he sometimes burned trash piles. Working with the claimant in Mississippi were three other regularly employed individuals, all engaged in clearing land. In addition to these four employees, the employer's son worked both in Tennessee and Mississippi on a temporary basis. In 1964 employer had a minimum of eight employees counting those in both Tennessee and Mississippi, but, with the exception of his son, none of these worked interchangeably between Tennessee and Mississippi. On September 11, 1964, the claimant was injured while working on the bulldozer.

I.

The first question for our decision is whether the claimant-appellee was a farm laborer within the meaning of Mississippi Code 1942 Annotated, Section 6998-03 (Supp.1966), which provides that farm labor is exempt from the provisions of the Workmen's Compensation Act.

The claimant did not engage in agricultural pursuits on the land in question. He did not operate any machinery for the plainting, cultivation, or harvesting of agricultural crops; nor did he engage in raising livestock. The sole activity of the claimant was that of clearing land. He used a bulldozer for this purpose and did mechanical work on the machine. The cost of this clearing operation was capitalized on the books of the employer and charged to the cost of the land. The facts clearly indicate claimant was not a farm laborer. The employer was developing the Tallahatchie County lands, but he was not engaged in farming. In 1 Larson, Workmen's Compensation Law, Section 53.00 (1965), it is said that the nearly universal rule is that the exemption of farm labor is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer's business. In the present case the employer was not a farmer and the character of the work regularly performed by the claimant was not that of a farm laborer.

II.

The second question is whether the employer, Nowlin, had in service eight or more employees in the same business, or in or about the same establishment. Mississippi Code 1942 Annotated, Section 6998-03 (Supp.1966), provides that an employer shall be subject to the Workmen's Compensation Act if he '* * * has in service eight (8) or more workmen or operatives regularly in the same business, or in or about the same establishment, under any contract of hire, express, or implied.'

It is admitted that if the employees, including claimant, who were engaged in clearing the Tallahatchie County, Mississippi, lands are added to the number of employees in the employer's service in Tennessee, the employer had a minimum of eight employees in 1964. If the employees engaged in clearing the Mississippi lands are not included, then the employer did not have the minimum of eight employees.

The machinery and tools used on the Tennessee work were not used in the Mississippi land clearing operation. The bulldozers used in the Mississippi land clearing operation were not used in Tennessee and were used only on lands owned by the employer. No...