Opinion
John H. Theis, Little Rock, for appellant.
P.C. Crumpler, Magnolia, for appellees.
[299 Ark. 298-A] HAYS, Justice.
In our opinion of June 26, 1989, 299 Ark. 293, 772 S.W.2d 331 we rejected appellees' argument that the law of the case as established in Ragland I, 293 Ark. 533, 739 S.W.2d 671 bars appellant's contention in this case (Ragland II) that the chancellor erred in holding that only after the employees arrived at the customer's premises did the employees engage in nonagricultural work.
Appellees' petition for rehearing adamantly insists the issue was raised in the first case. In response, appellant argues, just as adamantly, that it was not. Having carefully reviewed the record and briefs of the first case, we find nothing in the pleadings, the testimony, the decree of the chancellor or our opinion in Ragland I suggesting that in determining whether appellees' employees came within the definition of "agricultural labor" the chancellor considered time spent in transporting such employees from their regular job site to the premises of appellees' customers, and therefore, the petition for rehearing is denied. We do agree with appellees that agricultural labor may include time spent in delivering products to market [26 U.S.C. § 3121(g)(4)(A) ], provided, however, that the primary purpose of the transportation is the delivery of the product to market and is not merely incidental to landscaping services. See 26 C.F.R. § 780.206. Inasmuch as that issue has not been developed, we make no attempt on this record to determine whether the underlying purpose is the delivery of horticultural products to market, or [299 Ark. 298-B] providing landscaping services to customers of appellees.
Petition for rehearing denied, supplemental opinion issued.
HICKMAN, J., dissents.