carrier obligated to compensate employee injured while hanging political banners where workers’ compensation policy only contemplated coverage for “gin operations”
How later courts described this case
- carrier obligated to compensate employee injured while hanging political banners where workers’ compensation policy only contemplated coverage for “gin operations”
Written by the judges who cited it.
The opinion
Roberds, J.,
dissenting.
The insurance policy described the business or activity of the partnership employees covered by the insurance as that of “Cotton Gin operation — ,” at Skene, Mississippi, and then particularized the work involved in that operation.
Claimant was injured by coming into contact with a live electric wire while upon an electric pole endeavoring to attach thereto a political banner so as to stretch such banner several feet high across a street in Pace, Mississippi.
Under Chapter 354, Section 2 (2), injury to be com-pensable under the Act, means injury “arising out of and in the course of employment” covered by the insurance.
It is a far cry from working at a gin in Skene and climbing an 'electric pole in Pace. Indeed, by logic and reasons, there is not the slightest connection between the two activities. The majority opinion recognizes that and places liability of the carrier solely on the ground that the claimant, for what he deems sufficient reason, was willing to go outside his employment and do this political work for Mr. Kent. Such a test of liability is not only vague, indefinite and uncertain but is practically without limit. How is an insurer to know what rate to charge or the limit of liability? By that test there is liability regardless of the hazard resulting from the activity from which the injury results. Suppose Mr. Kent desired to go fishing upon dangerous waters and claimant was willing to row the boat and had drowned? By the adopted test the insurance carrier would have been *559 liable. Many situations can be conceived just as unfair and unreasonable, and even more so, than tbat. Indeed, tbe facts of this case support the assertion. The policy, in detailing the ginning operations, mentions yardmen and seed haulers, and some other duties, involving no unusual hazards. In the case at bar we have a pole carrying high voltage electric wires, claimant goes up this pole and comes in contact with what is termed in the record a “hot wire.” How can it be perceived that this insurance carrier could ever anticipate the insurance would cover a situation of that kind? Law, unless the result of arbitrary statute, ought not to disregard all reason and common sense.
Even in the extreme cases cited and relied upon as precedent in the majority opinion, some of them do involve some slight causal connection between the activity covered by the insurance and that producing the injury. For instance, in the Nygaard v. Throndson Brothers case, claimant was assisting in threshing grain; wet weather had stopped activity and he went with his employer to inspect a threshing machine with the view to purchase thereof by the employer. There is, of course, a slight connection between the two activities. However, it will be noted that in all of the cited cases the injury resulted from one outside activity — simply a going aside to perform some single or temporary outside task. Here claimant started this political activity for Mr. Kent on July 8. The first primary was August 7. Claimant, then, was to continue his political assistance at least thirty days, and, no doubt, Mr. Kent expected to survive the first primary and be nominated in the second primary some three weeks later. As a matter of fact it appears he was elected sheriff at the general election in November. So that his engagement of the services of claimant to assist him in his political campaign was not to consist of one or two acts but was for a considerable period of time, which itself, even if we accept as authority the extreme, or so-called, liberal cases *560 cited in the majority opinion, distinguishes this case from them.
July 3, 1953
35 Adv. S. 6
65 So. 2d 840
There are scores of cases holding contrary to the conclusion reached in the able majority opinion. Some of them are: Paradis’ Case (Me.), 142 A. 863 ; Phillips v. Industrial Com. (Ill.), 61 N. E. 681 ; Burnett v. Palmer-Lipe Paint Co. (N. C.), 204 S. E. (2d) 507 ; Kramer v. Industrial Accident Com. (Cal.), 161 P. 278 ; Elliott v. Elliott Bros. (Tenn.), 52 S. W. (2d) 144 ; Olson’s Case (Mass.), 147 N. E, 350; Tunnicliff v. Pettendorff (Ia.), 214 N. W. 516 ; Pacific Employer’s Ins. Co. v. Department of Industrial Relations (Cal.), 267 P. 880 ; Marten-sen v. Schutte Lmbr. Co. (Mo.), 162 S. W. (2d) 312 ; American Mutual Liability Ins. Co. v. Lenning (Ga.), 200 S. E. 141 . Many others are collected under the annotation in 172 A. L. R., beginning at page 378. But the question for us is simple. Our statutes as to the insurer require the activity causing the injury to arise out of and in the course of the employment covered by the insurance. By no process of reason, in my opinion, can that be said to be true in this case.
Mr. Kent may be liable. That is not the question. Is the insurer liable ? That is the question. They are very different questions.
ON SUGGESTION OF ERROR
Ethridge, J.
Appellant, National Surety Corporation, argues that Kemp’s injury resulted solely from personal work done for an individual, Kent, and not for the partnership, Skene Gin Company, which it is said is an employing entity under the workmen’s compensation act. But that position disregards the undisputed facts as to the peculiar nature of the contract between Kemp and Skene Gin Company. The gin could provide only six or seven *561 months ’ work exclusively at the gin, so, in order to obtain a competent gin operator, the company had to employ Kemp on a year-round basis at a salary of $250.00 per month. The contract of employment provided that in addition to operating and repairing the gin, Kemp would perform any duties which might be assigned to him by either of the partners of the gin company. In other words, the scope of his employment was two-fold: to operate the gin, and to do any tasks which he was directed to perform by either of the partners. His salary was paid for the entire year by the partnership. Hence the injury suffered by claimant was incurred by him under the contract of employment itself, and under the direction of his employer. As a matter of fact, the performance of duties assigned to claimant by the partnership, through one of the partners, was of benefit to the gin company’s operations in the practical sense that the performance of such tasks made available to the company the services of claimant for the actual operation of the gin. The peculiar nature of this contract resulted in Kemp’s injury arising out of and in the course of his contracted employment.
And to the extent that the particular work he was doing when he was injured was not specified in the contract, the injury also clearly comes within the numerous cases discussed in the original majority opinion which recognizes the right of the employer to enlarge the course of employment by assigning tasks outside the usual area. The employer-employee relation was the source of the authority for the assignment of the task which claimant was doing when he was injured. The dual employment cases are not relevant, because Kemp was not employed by two employers, but by only one, the partnership.
• Suggestion of error overruled.
Hall, Lee, Kyle, Holmes, and Arrington, JJ., concur.