{ "id": 8523185, "name": "PERRY H. MURRAY, Employee-Plaintiff v. T. ORAS BIGGERSTAFF d/b/a BIGGERSTAFF'S GIN AND SEED CLEANER, Employer-Defendant, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier-Defendant", "name_abbreviation": "Murray v. Biggerstaff", "decision_date": "1986-06-17", "docket_number": "No. 8510IC1105", "first_page": "377", "last_page": "384", "citations": [ { "type": "official", "cite": "81 N.C. App. 377" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 Utah 376", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 45623 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/utah/83/0376-01" ] }, { "cite": "137 N.Y.S. 2d 430", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1955, "opinion_index": 0 }, { "cite": "285 App. Div. 909", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 5408665, 5410475, 5405783 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ad/285/0909-03", "/ad/285/0909-01", "/ad/285/0909-02" ] }, { "cite": "237 N.E. 2d 491", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "48 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "77 Ga. App. 550", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1539020 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ga-app/77/0550-01" ] }, { "cite": "140 N.E. 2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "36 Ind. 400", "category": "reporters:state", "reporter": "Ind.", "year": 1957, "opinion_index": 0 }, { "cite": "209 S.E. 2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1974, "pin_cites": [ { "page": "474", "parenthetical": "quoting 3 Am. Jur. 2d Agriculture Section 1" }, { "page": "474" }, { "page": "473" } ], "opinion_index": 0 }, { "cite": "286 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563943 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0156-01" ] }, { "cite": "162 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "year": 1968, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "262 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548255 ], "year": 1980, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0255-01" ] }, { "cite": "183 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550892 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0535-01" ] }, { "cite": "136 S.E. 2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "262 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566948 ], "year": 1964, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0272-01" ] }, { "cite": "325 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 796", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758339, 4749837, 4759214, 4754262, 4759069 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0796-02", "/nc/312/0796-01", "/nc/312/0796-05", "/nc/312/0796-04", "/nc/312/0796-03" ] }, { "cite": "318 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520438 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0088-01" ] }, { "cite": "251 S.E. 2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "405" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "296 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568014 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0540-01" ] }, { "cite": "270 S.E. 2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563992, 8564011, 8563944, 8563965 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0562-03", "/nc/300/0562-04", "/nc/300/0562-01", "/nc/300/0562-02" ] }, { "cite": "266 S.E. 2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "300 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561147 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0329-01" ] } ], "analysis": { "cardinality": 724, "char_count": 15880, "ocr_confidence": 0.817, "pagerank": { "raw": 2.4908460318202513e-07, "percentile": 0.808546753111861 }, "sha256": "445c5ee3bf93b0216ebef897d0c97a853e756914b50495c1ed338b9851f9bf36", "simhash": "1:05b155dbac7ee97e", "word_count": 2594 }, "last_updated": "2023-07-14T19:31:13.412578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and COZORT concur." ], "parties": [ "PERRY H. MURRAY, Employee-Plaintiff v. T. ORAS BIGGERSTAFF d/b/a BIGGERSTAFF\u2019S GIN AND SEED CLEANER, Employer-Defendant, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nWe first consider whether plaintiff sustained an injury arising out of and in the course of his employment with Biggerstaff Gin and Seed Cleaner. Defendants contend that plaintiffs injuries occurred while performing a task outside his regular job duties and that therefore plaintiffs employment was casual which would exclude plaintiff from benefits under the Workers\u2019 Compensation Act (the Act) pursuant to G.S. 97-13(b). We disagree.\nThe standard of review on appeal from an opinion and award of the Industrial Commission is two-fold: (1) are the findings of fact supported by competent evidence, and (2) are the conclusions of law supported by the findings. Barham v. Food World, 300 N.C. 329, 266 S.E. 2d 676, reh\u2019g denied, 300 N.C. 562, 270 S.E. 2d 105 (1980). \u201cWhether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner\u2019s findings in this regard, we are bound by those findings.\u201d Id. at 331, 266 S.E. 2d at 678.\nDeputy Commissioner Sellers\u2019 findings of fact include the following:\n1. Plaintiff began working for the defendant-employer, Oras Biggerstaff, d/b/a Biggerstaff\u2019s Gin and Seed Cleaner on 2 May 1983 assisting in the processing of soybeans, oats and barley. This job required placing the product into shoots for cleaning, bagging up the seeds and as well as the trash, stacking bags, and loading and unloading the trucks. On occasion plaintiff worked a six-day week.\n2. When plaintiff reported to work on Saturday, 6 August 1983, the only work inside the gin to be done involved heavy lifting of new equipment requiring the strength of two individuals and, there being no other employees present, Oras Biggerstaff instructed plaintiff to \u201cbush hog\u201d the area around the gin building and a field which Biggerstaff rented.\n3. While \u201cbush hogging\u201d in the latter location, the front wheels of the tractor hit a gully hidden by high weeds causing the steering wheel to abruptly turn, catching plaintiff\u2019s arm within the wheel, and then throwing him off and under the tractor where he was run over by a portion of the vehicle. He sustained a laceration of this right leg from the hip to his foot for which he was hospitalized for a period of at least seven weeks.\n4. Plaintiff was paid for his services on this day by a check drawn on the account of Biggerstaffs Gin and Seed Cleaner, just as he had always been paid. Plaintiff had not done \u201cbush hogging\u201d on any prior occasion, as he had always performed the tasks involved directly in the ginning process.\nThe deputy commissioner then found as fact and concluded as a matter of law that plaintiff sustained an injury arising out of and in the course of his employment.\nA compensable injury under the Act is one that arises out of and in the course of employment. G.S. 97-2(6). The two requirements are separate and distinct and both requirements must be met in order for the injury to be compensable. Barham, supra. Casual employees are excluded from coverage under the Act. G.S. 97-13(b).\n\u201cAn injury arises out of employment when it is the result of a condition or risk created by the job.\u201d Martin v. Bonclarken Assembly, 296 N.C. 540, 544, 251 S.E. 2d 403, 405 (1979). For an injury to \u201carise out of\u2019 employment there must be some causal connection between employment and the injury. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E. 2d 534 (1984), disc. rev. denied, 312 N.C. 796, 325 S.E. 2d 484 (1985). \u201cThe words \u2018in the course of,\u2019 as used in G.S. 97-2(6), refer to the time, place and circumstances under which the accident occurred.\u201d 296 N.C. at 544, 251 S.E. 2d at 405. \u201cAn accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer\u2019s business.\u201d Id. (quoting Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E. 2d 643, 645 (1964)). Employment is casual when it is irregular, unpredictable, sporadic and brief in nature. Clark v. Mills, Inc., 12 N.C. App. 535, 183 S.E. 2d 855 (1971).\nHere, there is competent evidence to support the deputy commissioner\u2019s findings and the findings support the conclusion that plaintiff suffered an injury by accident arising out of and in the course of employment. All of the evidence discloses that plaintiff was a full-time employee of Biggerstaff Gin and Seed Cleaner and had been so employed three months prior to the accident. He worked on Saturdays by choice and with the agreement of his employer. He was not merely a casual employee. His employment was neither irregular, unpredictable, sporadic nor brief. Clark, supra.\nPlaintiffs primary duties involved processing soybeans, oats and barley through the gin. However, plaintiff testified that when he was hired, his employer informed him that he might be required to do other work. On Saturday, August 6th the gin was not in operation. Mr. Biggerstaff, his employer, instructed the plaintiff to \u201cbush hog\u201d in the area around the gin and in a field leased by Mr. Biggerstaff. While \u201cbush hogging\u201d was not one of plaintiffs normal job duties, it was related to his employer\u2019s business. Plaintiffs evidence was that Mr. Biggerstaff intended to plant cotton in the field, which would later be processed through the gin and sold.\nThe injury occurred during plaintiffs normal Saturday work hours and in a field rented by Mr. Biggerstaff. The fact that defendant was off his employer\u2019s gin premises does not preclude a finding that the injury occurred in the course of employment. \u201cIf the employee is doing work at the direction and for the benefit of the employer, the time and place of work are for the benefit of the employer and a part of the employment of the employee. This satisfies the condition of time and place although the work is done off the premises of the employer and after regular working hours.\u201d Brown v. Service Station, 45 N.C. App. 255, 257, 262 S.E. 2d 700, 702 (1980). Furthermore, \u201cthe fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment.\u201d Harless v. Flynn, 1 N.C. App. 448, 456, 162 S.E. 2d 47, 53 (1968).\nWhen the accident and resulting injury occurred, plaintiff was engaged in an activity which he was authorized and directed to undertake by his employer. The activity indirectly benefited and furthered his employer\u2019s business. The injury was, therefore, a direct result of plaintiffs employment. Accordingly, plaintiffs injury by accident arose out of and in the course of his employment.\nII\nThe second question presented for review is whether plaintiff was a farm laborer and therefore excluded from coverage pursuant to G.S. 9743(b). Defendants contend that the activity of processing agricultural commodities like soybeans, oats and barley for seed is an agricultural activity and that therefore plaintiff is a farm laborer and excluded from coverage under G.S. 97-2(1) and G.S. 9743(b).\nAgricultural employment is excluded from the definition of covered employment under G.S. 97-2(1). In arguing that plaintiffs employment is agricultural, defendants rely on the definition of agriculture given in Hinson v. Creech, 286 N.C. 156, 209 S.E. 2d 471 (1974):\nTraditionally, agriculture has been broadly defined as \u201cthe science or art of cultivating the soil and its fruits, especially in large areas or fields, and the rearing, feeding, and management of livestock thereon, including every process and step necessary and incident to the completion of products therefrom for consumption or market and the incidental turning of them to account.\u201d\nId. at 159, 209 S.E. 2d at 474 (quoting 3 Am. Jur. 2d Agriculture Section 1). As further stated by the Court in Hinson, \u201cthe line of demarcation between agricultural and nonagricultural employment often becomes \u2018extremely attenuated.\u2019 \u201d Id. at 160, 209 S.E. 2d at 474. \u201cThe question in marginal factual situations must frequently turn upon whether the employment is a separable, commercial enterprise rather than a purely agricultural undertaking.\u201d Id.\nWe do not believe, given the facts of this case, that the commercial processing of agricultural commodities for seed is an agricultural activity within the definition given by the Court in Hinson, supra. In viewing the \u201cline of demarcation between agricultural and nonagricultural employment\u201d we find that the gin and seed cleaner business of defendant-employer is a \u201cseparate, commercial enterprise\u201d and not a \u201cpurely agricultural undertaking.\u201d\nG.S. 9743(b) states that the Act shall not apply to farm laborers. \u201cWhether an employee is a farm laborer depends, in a large degree, upon the nearness of his occupation to the planting, cultivation, and harvesting of crops.\u201d Hinson, supra, 286 N.C. at 158, 209 S.E. 2d at 473. In determining whether an employee is a farm laborer, emphasis is placed on the nature of the employee\u2019s work rather than the nature of the employer\u2019s business. Id. The nature of the employee\u2019s work is determined from the \u201cwhole character\u201d of his employment and not from the particular work he was performing when injured. Id. (quoting H. J. Heinz Co. v. Chavez, 36 Ind. 400, 140 N.E. 2d 500 (1957)).\nExamining the \u201cwhole character\u201d of plaintiffs employment, we find that he was not a farm laborer under G.S. 9743(b). Plaintiff was employed to process oats, soybeans and barley through the gin process, including other work incidental to the ginning operation. Plaintiffs occupation could not be characterized as being closely related to the planting, cultivating and harvesting of crops. Plaintiffs employment involved the commercial processing of agricultural commodities after they had been harvested.\nWe also note that the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted does not make his labor farm labor within the meaning of G.S. 9743(b). Plaintiffs injury occurred during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor. However, plaintiff\u2019s temporary assignment to farm related work does not interrupt his compensation coverage. 1C A. Larson, The Law of Workmen\u2019s Compensation Section 53:40 (1986). For example, coverage has been allowed for the following agricultural excursions: A garage employee sent to clean a farm well, Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550, 48 S.E. 2d 918 (1948); employee at a grain elevator sent by employer to work at employer\u2019s farm, Friend v. Industrial Commission, 237 N.E. 2d 491 (Ill. 1968); a general maintenance man temporarily shifted to farming because of weather conditions, White v. Barrett, 285 App. Div. 909, 137 N.Y.S. 2d 430 (1955); a brick manufacturer\u2019s employee baling hay for the use of factory horses, Harding v. Industrial Commission of Utah, 83 Utah 376, 28 P. 2d 182 (1934).\nWe hold that the full Commission properly affirmed Deputy Commissioner Sellers\u2019 award of benefits. Plaintiffs injury arose out of and in the course of plaintiffs employment with Biggerstaff Gin and Seed Cleaner. Further, plaintiffs employment was not agricultural and plaintiff was not a farm laborer. Accordingly, defendants\u2019 assignments of error are overruled.\nAffirmed.\nJudges WEBB and COZORT concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Jim R. Funderburk for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson for defendant-appellants." ], "corrections": "", "head_matter": "PERRY H. MURRAY, Employee-Plaintiff v. T. ORAS BIGGERSTAFF d/b/a BIGGERSTAFF\u2019S GIN AND SEED CLEANER, Employer-Defendant, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier-Defendant\nNo. 8510IC1105\n(Filed 17 June 1986)\n1. Master and Servant \u00a7 55.4\u2014 workers\u2019 compensation \u2014employee\u2019s accident arising out of and in course of employment\nEvidence was sufficient to support the deputy commissioner\u2019s findings which in turn supported the conclusion that plaintiff suffered an injury by accident arising out of and in the course of employment where the evidence tended to show that plaintiff was a full-time employee of defendant and had been so employed for three months prior to the accident; he worked on Saturdays by choice and with the agreement of his employer; he was not merely a casual employee; plaintiffs injury occurred while he was \u201cbush hogging\u201d a field leased by his employer; though not one of his normal job duties, \u201cbush hogging\u201d was related to his employer\u2019s business; and the injury occurred during plaintiff s normal Saturday hours while he was performing a task at the direction of his employer.\n2. Master and Servant 8 49.1\u2014 workers\u2019 compensation \u2014 processing agricultural commodities for seed \u2014 employee not farm laborer\nPlaintiff was not a farm laborer and therefore excluded from workers\u2019 compensation coverage under N.C.G.S. \u00a7 9743(b) where plaintiffs work involved the commercial processing of agricultural commodities for seed; furthermore, the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted did not make his labor farm labor within the meaning of the statute, since plaintiffs injury occurred during a one time excursion out of the ginning process and into an activity more akin to farming or agricultural labor.\nAPPEAL by defendants from Opinion and Award of Industrial Commission filed 5 April 1985. Heard in the Court of Appeals 5 May 1986.\nDefendants appeal from an award to the plaintiff. The parties stipulated that the injury arose by accident on 6 August 1983 and that the workers\u2019 compensation carrier for defendant-employer was Lumbermens Mutual Casualty Company.\nPlaintiff began working for Oras Biggerstaff d/b/a Bigger-staff s Gin and Seed Cleaner on 2 May 1983. Plaintiffs duties included processing soybeans, oats and barley through a gin, bagging the seeds and other by-products of the process, stacking the bags, and loading and unloading the bags from trucks. Plaintiff had asked his employer if he could work on Saturdays to earn some extra money and Mr. Biggerstaff agreed. Plaintiff was the only employee who worked on Saturdays.\nOn Saturday, 6 August 1983, plaintiff reported to work. Since the only other work available involved lifting heavy machinery which required more than one employee and plaintiff was the only employee present, Mr. Biggerstaff instructed the plaintiff to \u201cbush hog\u201d in the area around the gin and in a field that Mr. Big-gerstaff leased.\n\u201cBush hogging\u201d involves mowing down high weeds with a heavy rotary mower (\u201cbush hog\u201d) attached to the back of the tractor. The plaintiff had never used a \u201cbush hog\u201d before. The plaintiff proceeded to first \u201cbush hog\u201d in the area around the gin and then moved on into the field. While \u201cbush hogging\u201d in the field the front wheels of the tractor hit a gully hidden by high weeds causing the tractor\u2019s steering wheel to turn abruptly, catching plaintiffs arm within the steering wheel and throwing plaintiff off and under the tractor. The \u201cbush hog\u201d mower ran over plaintiffs right leg causing a laceration from hip to foot. Plaintiff was hospitalized for seven weeks.\nDeputy Commissioner Sellers found as fact that plaintiff was an employee of Biggerstaff Gin and Seed Cleaner when he sustained his injury by accident arising out of and in the course of employment. The deputy commissioner awarded to plaintiff temporary total disability compensation at a weekly rate of $95.13 beginning 7 August 1983 and continuing until plaintiff reached maximum medical improvement or returned to work, whichever occurred first. In addition, the deputy commissioner awarded plaintiff compensation for permanent partial disability sustained as a result of the injury by accident. On appeal the Full Commission adopted the findings and conclusions of the deputy commissioner and affirmed the award of benefits. Defendants appealed.\nJim R. Funderburk for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe by Scott M. Stevenson for defendant-appellants." }, "file_name": "0377-01", "first_page_order": 401, "last_page_order": 408 }