The opinion
Dissenting Opinion.
Mb. Justice DeITaven
delivered the dissenting opinion.
This is a workmen’s compensation case in which there was a judgment for the employer and its insurance carrier. The single question presented is whether the petitioner, at the time of his injury, was a casual employee of the defendant Abraham Bros. Packing Company. • 1 ;
The proof in the case shows that Abraham Bros. Packing Company is a corporation engaged in the business of slaughtering cattle and selling meat and by-products. The company owns, operates, and controls the grounds', buildings, plant, ahd accessories located at Hollywood, Memphis, Tenn. The Company employs a chief engineer and a chief maintenance' man.. Both of these positions were held by George Crumby. -The company had installed a new sprinkler ..system, for' protection
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against-fire. Under a city ordinance, it became necessary to place bousing1 around tbe valves of tbe sprinkler system to prevent them from freezing.
Petitioner is a carpenter. He was first employed by tbe packing company on March 22, 1935, at 30 cents per hour, and was put to work on a hide house for tbe curing of bides, worked on a salt bin and on a coal bin, which held tbe coal used for generating steam for operating tbe entire plant, and did some general repair work about tbe plant. He worked at tbe plant, under tbe supervision of tbe chief of maintenance, through April 4, 1935.
On May 13, 1935, tbe chief of maintenance again sent for petitioner, and he was put to work building a door to the refrigerator room used for curing bides, and made some alterations and changes in tbe office of tbe plant. He was then put to work on building the bousing over the valves of the sprinkler system. While engaged in tbe latter work, on May 24, 1935, be was struck in tbe right eye by a piece of tin, on which be was working, and injured so that be lost tbe sight of the eye. He had previous to bis employment by defendant lost tbe sight of bis left eye.
Tbe company bad a chief of maintenance who employed petitioner, and under whose orders and supervision petitioner worked. It is admitted by tbe chief of maintenance that the work done by petitioner came under tbe head of maintenance. It cannot be successfully maintained that because petitioner * was not engaged in the slaughtering of cattle, or the sale of meat, he was not employed in the usual course of the business of the company. It was a part of the company’s business to keep its plant in such condition that it could be operated efficiently. A plant such as the company maintains is a
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complex affair, to the necessary operation of which many and varied activities are essential, and which, taken together, constitute its trade or business.
Section 6852 of the Code (Workmen’s Compensation Law), in paragraph (b) thereof, provides, among other things:
“ ‘Employee’ shall include every person, including a minor, in the service of an employer, as ‘employer’ is defined in paragraph (a), above, under any contract of hire, apprenticeship, written or implied.”
Under this definition Dancy was, unquestionably, an employee of Abraham Bros. Packing Company. He worked under the supervision and instructions of the chief of maintenance. He was not an independent contractor. He worked on a wage scale of 30 cents an hour and was paid weekly for the time he had made.
Section 6856 of the Code provides:
“This chapter shall not apply to: .
“(b) 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.”
Two things only are necessary to the recovery of compensation: (1) That the claimant be an employee at the time of injury; and (2) that he be employed, at such time, in the usual course of trade, business, etc., of the employer.
The length of time of the employment is not material. It makes not the slightest difference whether Dancy was employed for one hour, six months, or a year. One need not be regularly employed in order to be entitled to the benefits of the statute, if at the time of his injury he was engaged in the usual course of trade or business of the
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employer. This court has held that the employee comes within the protection of the statute although the employment be temporary as distinguished from regular employment.
Parks
v.
E. M. Carmell Co.,
168 Tenn., 385 , 79 S. W. (2d), 285 ;
Gibbons
v.
Roller Estates, Inc.,
163 Tenn., 373 , 43 S. W. (2d), 198 .
The superintendent of the plant testified that defendant conducts a large business, in excess of a million dollars a year; that whenever it was necessary to have carpentry work done, they employed a carpenter; that such matters were under Mr. Crumby, the chief engineer of the plant. The majority opinion stresses the fact that the company did not maintain a department “for the purpose of performing repair or construction work in connection with the operation of its plant.” Whether the company had such a department or not is immaterial, if Dancy was an employee, and at the time of his injury was employed in the usual course of trade of his employer. However, I think it did have such a department. Crumby was chief of maintenance, and, while Dancy was working, he had one employee under him. The majority opinion rather carries the implication that for such department to exist the company would have to have “regular employees” to perform the work. It is stated; “It does not appear that this Packing Company maintained a force of carpenters for such work, or was prepared by or through its regular employees to perform it.” This, I think, erroneously brings into consideration the element of time as regards the length of service of the employee. The department could exist if persons were engaged by the superintendent of maintenance “under a contract of hire ’ ’ to perform the work as and when needed.
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There is a conflict in the authorities from other jurisdictions on the question here presented. This conflict arises, in the main, from different interpretations of the word “casual” appearing in the various compensation acts, and from the differences between the acts themselves. In Tennessee, however, the word “casual” is defined by tlie act itself and cannot be given a different definition by the courts.
For the reasons stated, I feel constrained to dissent from the opinion of the majority of the court.