Vantrease v. Smith

• Decision Date: 26 February 1921
• Citation: 227 S.W. 1023
• Parties: VANTREASE v. SMITH et al.
• Court: Tennessee Supreme Court

Page 1023

227 S.W. 1023

VANTREASE v. SMITH et al.

Supreme Court of Tennessee.

February 26, 1921.

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Action by R. E. Vantrease against A. J. Smith and others. Judgment for defendants, and plaintiff appeals. Affirmed and remanded.

Pitts & McConnico, and Seth M. Walker, all of Nashville, for Vantrease.

Wm. Hume, of Nashville, for appellees.

McKINNEY, J.

On May 29, 1920, the plaintiff, R. E. Vantrease, while employed at the sawmill of the defendant, A. J. Smith, in Nashville, accidentally had two of his fingers crushed.

The defendant, Smith, has never had more than 6 persons employed at said mill at one time. The affidavit of the defendant, copied into the record, upon this question is as follows:

"Affiant states: That for a number of years he has been engaged in the business of buying, selling, and dealing in cedar, including the manufacture of logs, posts, etc. That continuously since 1915 his office has been located near the corner of Stewart street and McEwen avenue, in the city of Nashville, Davidson county, Tenn., and which location is sometimes referred to as the north side of Cedar street, near the Nashville, Chattanooga & St. Louis Railroad. That adjoining affiant's office at the location aforesaid affiant has been maintaining a distributing yard and also a sawmill, which is equipped with two cut-off saws and one side edger.

"That affiant's business required the employment of different crews of workmen, from time to time, who are moved from one job to another as occasion requires, and that affiant has had such crews of workmen in his employ in the counties of Davidson, Wilson, Williamson, Rutherford, Jackson, Putnam, and Maury, all in Tennessee. For illustration, affiant would purchase a tract of timber, and then organize a crew of workmen, who would cut the timber and transport the same. That this method of doing business, by affiant, has been carried on for several years, so that at times affiant would have large numbers of persons in his employ which would be connected with the several crews of workmen in the different counties and at the different locations where affiant was engaged in preparing his material for the market. That during all of this period of several years the office of affiant has been located at Nashville, Davidson county, Tenn., at the address above mentioned.

"Affiant further states that from July 1, 1919, up to and including May 29, 1920, he has had more than 10 persons regularly employed, and has been continuously and regularly using the services of more than 10 persons for pay.

"Affiant also states that from July 1, 1919 up to and including May 29, 1920, he had more than 10 persons in his regular employ, and was using the services of more than 10 persons for pay near Springhill, Maury county. Tenn., and who were engaged in hauling and loading cedar. That on May 29, 1920, there were 16 persons in the employ of affiant at Springhill, Maury county, Tenn., and there were 4 persons in affiant's employ at his distributing yard at Nashville, Davidson county, Tenn., in addition to 1 employé in affiant's office.

"Affiant states that at no time from July 1, 1919, up to and including May 29, 1920, was there ever less than 10 persons in his regular employ, but, to the contrary, during all of said period there were more than 10 persons in his employ, and whose services affiant was using for pay."

Acting upon the theory that he had more than 10 persons in his employ, the defendant undertook to bring himself within the provisions of the Workmen's Compensation Act (Laws 1919, c. 123) by procuring indemnity insurance, and giving the prescribed notice to the State Insurance Commissioner. The defendant did not, however, comply with subsection (d) of section 6 of said act, which provides that an employer, with a force of less than 10 persons, desiring to accept the benefits of the act, shall give notice to the State Factory Inspector.

The question is, Did the defendant have as many as 10 persons regularly in his employ, at the time of the injury, within the meaning of that term as it appears in said act?

On behalf of the plaintiff it is insisted that the act does not apply for the reason that the intention of the act was that 10 or more persons must be regularly engaged in work at the place of the injury; on the other hand, the defendant insists that the language employed is not subject to such a restricted meaning, but is applicable in all cases where the defendant has as many as 10 persons regularly in his employ, whether they work in the same place or in the same county or not.

The sections of the act (chapter 123 of the Acts of 1919) that are in any sense pertinent to the issue here involved are as follows:

"Sec....