{ "id": 1712467, "name": "Danny L. STEWART v. COSBY-PARSONS QUARTER HORSE RANCH", "name_abbreviation": "Stewart v. Cosby-parsons Quarter Horse Ranch", "decision_date": "1980-07-02", "docket_number": "CA 80-103", "first_page": "866", "last_page": "871", "citations": [ { "type": "official", "cite": "269 Ark. 866" }, { "type": "parallel", "cite": "601 S.W.2d 590" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "253 Ark. 1080", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627444 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/1080-01" ] }, { "cite": "237 Ark. 448", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737990 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/237/0448-01" ] }, { "cite": "235 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684719 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0406-01" ] }, { "cite": "254 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624048 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0158-01" ] }, { "cite": "221 Ark. 750", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656464 ], "weight": 4, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/221/0750-01" ] }, { "cite": "215 Ark. 913", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464464 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/215/0913-01" ] }, { "cite": "262 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675853 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0417-01" ] } ], "analysis": { "cardinality": 467, "char_count": 8039, "ocr_confidence": 0.719, "pagerank": { "raw": 8.411867578422581e-08, "percentile": 0.48324593441548136 }, "sha256": "831de7a2e7254418ac4e3f079f97e66a97893169f53e5d7aa983878a3320fed5", "simhash": "1:2146858550b5739b", "word_count": 1313 }, "last_updated": "2023-07-14T14:52:47.346821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Danny L. STEWART v. COSBY-PARSONS QUARTER HORSE RANCH" ], "opinions": [ { "text": "Steele Hays, Judge.\nThis is a workers\u2019 compensation case. Claimant, Danny L. Stewart, sustained an injury while employed by appellee and claims benefits under the Workers\u2019 Compensation Act.\nA hearing was held before the Administrative Law Judge on June 21, 1979. The Administrative Law Judge determined, among other things, that a preponderance of the evidence indicated that appellee, Cosby-Parsons Quarter Horse Ranch, did not regularly employ three or more persons within the meaning of Ark. Stat. Ann. \u00a7 81-1302(c)(1) (Repl. 1976). The Full Commission upheld this determination by the Administrative Law Judge. Claimant brings this appeal from the decision of the commission.\nHis first point for reversal is that the commission\u2019s determination that there were less than three persons regularly employed by appellee at the time of appellant\u2019s injury is not supported by the evidence. Relying on the cases of Crouch Funeral Home, Inc. v. Crouch, 262 Ark. 417, 557 S.W. 2d 392 (1977) and Brooks, Inc. v. Claywell, 215 Ark. 913, 224 S.W. 2d 37 (1949), appellant alleges that an improper legal standard was used by the Administrative Law Judge and the Full Commission to reach the conclusion that there were less than three persons employed by appellee at the time of appellant\u2019s injury. We agree with appellant to the extent that the test in Brooks, supra, as to whether an injured employee was to receive benefits under Workers\u2019 Compensation Act was not his title but the nature and quality of the act at the time of the injury. Crouch, supra, supports the rule of law that when a claimant is injured while performing a service for a family member, the family relationship can not be ignored and it may be viewed as a personal service unrelated to the claimant\u2019s employment. If so, then claimant would be denied Workers\u2019 Compensation benefits.\nIn the instant case, we are concerned with the question of what persons should be considered employees to meet the requisite number of employees in order to come under the Workers\u2019 Compensation Act. There is no dispute that appellant was injured while working under the employment of appellee. On appeal, appellant contends that Sue Cosby, a wife of one of the partners, should be considered an employee within the meaning of Ark. Stat. Ann. \u00a7 81-1302(c)(l). We believe that a different standard should be appied to this question other than the standard in Crouch, supra or Brooks, supra. The determinative factor in ascertaining the requisite number of employees under Ark. Stat. Ann. \u00a7 81-1302(c)(1) is whether three persons are regularly employed in the same business. Wallace v. Wells, 221 Ark. 750, 255 S.W. 2d 970 (1953). See also Donaldson v. Socia, 254 Ark. 158, 492 S.W. 2d 253 (1973); Aerial Crop Care, Inc. v. Landry, 235 Ark. 406, 360 S.W. 2d 185 (1962). Larson\u2019s, Workimen\u2019s Compensation Law \u00a7 52 (1979) states:\nUnder numerical-minimum exemption statutes, the controlling number of employees is determined in the light of the employer\u2019s established mode or plan in the operation of his business. If he regularly employs the requisite number, he remains covered although the number employed falls temporarily below the minimum. Ordinarily only such employees as would themselves be subject to the act are included in the count. Details of interpretation should be controlled by the underlying purpose of the exemption, which is to avoid administrative inconvenience to very small employers.\nMrs. Cosby did, in fact, perform substantial services for appellee. She kept the books, hired new persons, cleaned the stalls, wrote out employee paychecks and paid some of the ranch bills. Nevertheless, the commission found that these duties were performed out of a sense of familial responsibility. There is no evidence in the record that she ever paid for her services or that she was working under a contract of employment. The question of the minimum number of employees in order to qualify appellee as an employer under the Workers\u2019 Compensation Act is a factual question for the commission and can not be disturbed on appeal unless unsupported by substantial evidence. Donaldson v. Socia, supra; Wallace v. Wells, supra.\nIn a Florida case with a very similar factual situation, Subterranean Circus v. Lewis, 319 S. 2d 600 (Fla. App. 1975), the Court of Appeals reversed a holding by the trial court that an employer had the requisite number of three employees to bring it under Workers\u2019 Compensation Law. A wife of one of the managers had written checks, jkept payroll records, and worked at sales at the circus. The court reversed a finding that she was an employee, stating:\nThis testimony of the secretary-treasurer as to keeping payroll records and writing checks for the employees certainly, does not constitute proof of the elements of regularity, continuity and common employment of three or more persons required by the statute.\nWe believe that the facts in Subterranean Circus are very similar to the facts in this case. Here, however, the Commission reached the same result as the appellate court did in Subterranean Circus, and we find that there is substantial evidence to support the commission\u2019s findnig that Sue Cosby was not an employee within the meaning of \u00a7 81-1302(c)(l).\nNor can we say that the commission\u2019s determination that James Whitely was not regularly employed is unsupported by substantial evidence. James Whitely testified that he worked for Harold Parsons on his farm. His place of employment was not even near the quarter-horse ranch. Occasionally, he was called upon to do odd jobs on the ranch such as feeding and watering the horses, repairing fences, and hauling off trash. However, nowhere in the record can we find that James Whitely was under a contract of employment, either express or implied, to work on the quarter horse ranch. As the commission found, the fact that he was employed by Harold Parsons indirectly benefited the Cosby-Parsons Quarter Horse Ranch. But this doesn\u2019t give him the status of an employee of the ranch when determining the requisite number of employees in order to come within the purview of the Workers\u2019 Compensation Act. The issue is a factual determination for the commission which will not be disturbed on appeal if supported by substantial evidence. Wallace v. Wells, supra. Even if we could find that James Whitely was, in some way, employed by Cosby-Parsons Quarter Horse Ranch his employment would be too irregular and of insufficient duration to be considered an employee of the ranch. See Larson\u2019s, Workers\u2019 Compensation Law \u00a7 52.20 (1979).\nAppellant also argues that appellee waived its exemption from coverage under the Workers\u2019 Compensation Act. \u00c1ppe\u00dcant cites one case for this point: McGeehee Hatchery Company v. Gunter, 237 Ark. 448, 373 S.W. 2d 401 (1963). In McGeehee, the employer had actually obtained Workers\u2019 Compensation insurance, and the Arkansas Supreme Court held that an employer could not refuse to pay benefits under the exemption after he had already secured a policy of insurance and filed it with the Workers\u2019 Compensation Commission. This case is distinguishable in that there is no evidence that the employer ever obtained workers\u2019 compensation insurance. Claimant merely testified that he was told that he was covered by Workers\u2019 Compensation. This testimony was disputed by Mr. and Mrs. Cosby which presents a credibility issue. Credibility is a matter lying exclusively within the province of the Workers\u2019 Compensation Commission. May v. Crompton-Arkansas Mills, 253 Ark. 1080, 490 S.W. 2d 794 (1973).\nAppellee raises the issue that it comes under the agricultural farm labor exemption, but we need not discuss that issue since we find for appellee on the other points.\nAffirmed.", "type": "majority", "author": "Steele Hays, Judge." } ], "attorneys": [ "Charles E. Hanks and Wyman R. Wade, Jr., by: Charles E. Hanks, for appellant.", "Blair, Cypert, Waters & Roy, for appellee." ], "corrections": "", "head_matter": "Danny L. STEWART v. COSBY-PARSONS QUARTER HORSE RANCH\nCA 80-103\n601 S.W. 2d 590\nCourt of Appeals of Arkansas\nOpinion delivered July 2, 1980\nReleased for publication July 8, 1980\nCharles E. Hanks and Wyman R. Wade, Jr., by: Charles E. Hanks, for appellant.\nBlair, Cypert, Waters & Roy, for appellee." }, "file_name": "0866-01", "first_page_order": 906, "last_page_order": 911 }