
    Threet v. Cox.
    
      (Nashville,
    
    December Term, 1949.)
    Opinion filed December 17, 1949.
    Rehearing Denied February 10, 1950.
    Harry G. SabiNe, of Crossville, for plaintiff in error.
    Tollett & Tollett, of Crossville, for defendant in error.
   Me. Justice Gailob

delivered tbe opinion of tbe Court.

Tbis is a proceeding under tbe Workmen’s Compensation Act, Williams’ Code, Section 6851 et seq. Tbreet sued Cox for back injuries sustained while working for Cox as a coal miner. After bearing tbe proof tbe Trial Judge took tbe case under advisement and finally made a written finding of fact in which be dismissed tbe petition on the ground that tbe defendant was not subject to tbe provisions of tbe Workmen’s Compensation Act because be did not employ tbe five employees required as a minimum under the Act. Tbe pertinent part of the finding of tbe Trial Judge is as follows:

“. . . tbe Court finds that tbe defendant was not subject to tbe provisions of tbe Workmen’s Compensation laws of tbe State of Tennessee, at tbe time the petitioner was injured while working in tbe mines of tbe defendant in that tbe defendant bad only been operating said mines for a period of three weeks prior to tbe plaintiff’s injury, and during said period of time which, it operated said mines it did not have five or more regular employees working for it in the operation of said mines, and the plaintiff could not maintain his suit under the Workmen’s Compensation Law; that the employees working for Lawrence D. Cox, at his saw mill which was the regular business of the said Lawrence 'D. Cox, could not be added to or taken under consideration in determining the number of regular employees working for the defendant at the mines at the time of the injury to the petitioner in said mines, which said saw mill business was separate and distinct from the operation of said mines, and in no way connected therewith, and the Court disallows the insistence of the petitioner, that the employees at the mill should be counted in ascertaining the number of the employees at the mines, because said saw mill employees were not regular employees of the defendant at its mines and said two businesses were maintained and operated in a different separate and distinct manner and neither operation was connected with or had any relationship to the other.”

The Trial Court then dismissed the petition and the plaintiff has appealed, making five assignments of error. Since the last four of the assignments of error assert that the decision of the Trial Judge was against the preponderance of the evidence and would have this Court reweigh that evidence to change the judgment, they are not for our review. In the Supreme Court, in cases rising under this statute, the finding of the Trial Judge is conclusive on questions of fact, though the preponderance of the evidence be against the finding. Vester Gas Range Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S. W. 395. If the finding of the Trial Judge is supported by any material evidence, it must be affirmed. Hedges-Walsh-Weidner Co. v. Haley, 165 Tenn. 486, 55 S. W. 2d 775; Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S. W. 2d 67; Cantrell Co. v. Goosie, 148 Tenn. 282, 255 S. W. 360; Milne v. Sanders, 143 Tenn. 602, 228 S. W. 702; Washington County v. Evans, 156 Tenn. 197, 299 S. W. 780; Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S. W. 2d 18; WilTtmson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 299 S. W. 1056, 2 S. W. 2d 89; Black Diamond Collieries v. Deal, 150 Tenn. 474, 265 S. W. 985; Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S. W. 802.

Tbe first assignment, wliicb is tbe only one nnder tbe foregoing authorities that is subject to our review, is as follows:

“Tbe finding of tbe Trial Court, that Defendant did not have five or more regular employees at tbe time of Complainant’s injury, is not supported by material evidence.”

Tbe pertinent part of the defendant Cox’s testimony is as follows:

“Q. Were you operating tbe mine under tbe Workmen’s Compensation Laws of tbe State of Tennessee and bow long bad you been operating tbe mine? A. No, I was not operating under tbe Workmen’s Compensation Law. It was just a little truck mine I bad opened up and bad been working it for about three weeks or a little longer, not very long; my regular business was saw milling and I was not regularly engaged in mining, bad just started this little opening and worked it for a short time; that I told tbe men I was not operating it under tbe Compensation Law and told them there wouldn’t be any compensation insurance as I was going to work but three or four men at this mine and that I didn’t hire more than four men at a time, and all the men who worked for me at this time knew I was not operating it under the Compensation Law; that when I first started this opening I just had three men working, Henderson Conley, Taylor Wyatt and Dallas Bobbins; and that these three men worked until I hired Scott Threet, which was about two weeks before Threet was injured, and Henderson Conley quit when I hired Threet and didn’t work any more; that G. W. Conley worked about 2 days just after Henderson quit, and then he quit and didn’t work any more; that Mitch Cannon began working shortly after G. W. Conley quit. . . .
“Q. How many men were you working at the mine when Threet was injured? A. Four. I never had over four regular men and part of the time I had only three.”

We think that the foregoing was material, substantial evidence to support the judgment of the Trial Judge.

The assignments of error are overruled and the judgment is affirmed.

All concur.  