93 P.2d 940 | Wyo. | 1939
Leslie Roby, hereinafter called the employee, or by his name, was employed by one Owen Hallam, near Powell, in Park County of this state, to help in baling hay, and for that purpose only. Hallam baled hay for various farmers in Park County commercially, on contract, receiving $2.50 per ton. The baler was operated by a tractor. On February 25, 1935, while Hallam was baling hay on the farm of one O.E. Bever, with the employee helping, the left eye of the latter became infected by the dust surrounding the baler. He consulted some physicians in the neighborhood, but, his eye not becoming better, he went to Billings, Montana, where, soon thereafter, it became necessary to take out his eye. On account of this, he presented his claim under the workmen's compensation act, and the court allowed him the sum of $1800. The state intervened in *445 the proceeding, claiming that the workman is not protected under the workmen's compensation act of this state, and the question whether he is or not is the sole question herein.
Section 124-105, R.S. 1931, excepts from the workmen's compensation act persons engaged in "ranch, farm, agricultural or horticultural labor and stock raising." Counsel for the employee claim that this provision is not in point; that in this case the employee was engaged in an industrial pursuit and not in agricultural labor, by reason of the fact that Hallam was not a farmer, but went from place to place in Park County, baling hay on contract, and that accordingly he was engaged in an industrial occupation. The statutes of this state provide that compensation under the workmen's compensation act is payable to persons injured in extra-hazardous employment. Section 124-102, R.S. 1931. It is further provided, by Sec. 124-104, that the extra-hazardous occupations apply to: "Factories * * * mills * * * and workshops where machinery is used. * * *" In Section 124-106, 107, these terms are defined, and counsel for the employee claim that these definitions are applicable herein. It is provided: "Factories mean any premises wherein power is used in manufacturing, making, altering, adapting, ornamenting, etc., any article for the purpose of trade or gain." A number of places are specifically mentioned, not including any premises on a farm. "Workshop" is defined as "any yard, plant, premises, room or place where power driven machinery is employed and manual labor is exercised by way of trade or grain or otherwise incidental to the process of making, altering, repairing * * * finishing or adapting for sale or otherwise any article or part of article, over which premises, room or place the employer of the person working therein has the right of access or control." A mill is defined as "any plant, premises, room or place where *446 machinery is used * * * changing, altering or repairing any article or commodity for sale or otherwise together with the the yards and premises which are a part of the plant, including elevators, warehouses, etc., or other work in the lumber industry."
It is apparent, of course, that an open place on a farm where hay is baled would not ordinarily be understood as coming within the definitions of factory, workshop or mill. The only possible way in which the contrary would be true under the statute is by holding that the legislature meant that any "place" or any "premises" where machinery driven by power is used in order to alter or adapt any article for gain or sale or otherwise should be included under the workmen's compensation act. It would seem, however, that if this had been the intention of the legislature it would hardly have been necessary to make such minute descriptions of factories, workshops and mills. In any event, even if it were possible to give these terms the broad meaning which counsel claim, every farmer who uses machinery at any place on his farm would be included under the act, requiring him to make payments as provided thereunder. Hence, these provisions cannot, in any event, be controlling herein, and it will be necessary to determine what the legislature meant when it enacted that an employee engaged in ranch, farm, agricultural or horticultural labor shall be excepted from the act. As already stated, counsel for Roby claim that he was not employed in agricultural or farm labor but was engaged in an industrial pursuit.
Counsel have not cited us to any case directly in point, but to some analagous cases in which it appears that the statute excepted from the compensation act farm or agricultural laborers and in which it was held that one employed by an operator of a machine like a thresher or corn shredder for various parties in the community for hire under contract is not a farm or *447
agricultural laborer, but is engaged in an industrial pursuit and hence is included within the protection of the workmen's compensation act. That has been held in New York, Indiana, Michigan and Colorado. White v. Rhodes,
A number of cases hold, under a like statute, contrary to the rule announced in the foregoing cases. A note on the subject may be found in 7 A.L.R. 1296, 13 A.L.R. 955, 35 A.L.R. 204, 43 A.L.R. 954, and 107 A.L.R. 977. See specifically State v. District Court,
"The important question is, what is the nature of the work? The work is done upon a farm. It is done upon farm crops. The purpose of growing the crops is to provide food for consumption or market. * * * The fact that more complicated mechanical devices are used * * * does not change the character of the work. Much farm work is done by the use of complicated machinery. There are tractor plows, self-binders and even combination harvester threshers by means of *448 which harvesting and threshing are done as one operation. These and other operations may be done for others by one who is able to own the more complicated and expensive machinery. But it is all, nevertheless, farm work and the employe who does such work is a `farm laborer' within the meaning of the Compensation Act. Any other rule would be impractical and would lead to discriminations that could not be tolerated. This case illustrates it. Suppose the farmer's hired man who was helping plaintiff had also fallen. Both were doing the same work. Surely the hired man was then a `farm laborer.' It cannot be said that one was a `farm laborer' and the other was not."
In the Nebraska case the threshing machine in question was owned by a group of farmers for the purpose primarily of threshing their own grain. At the time when the employee in question was injured in that case, the threshing machine was operated on the farm of one Bradley, who then had no interest in the machine. However, it was held that the injured person did not come within the provision of the statute which excepted from the benefits of the workmen's compensation act employees of farm laborers. The court, mentioning the cases holding that an employee of one operating a machine for hire is engaged in an industrial pursuit, said that in these cases, "the status of the employee is conceived to be changed by the fact that the employer is not a farmer nor engaged in the general operation of a farm, but only in a single and particular part thereof. We are unable to perceive any logical basis for such a metamorphosis, especially when considering those statutes in which the excluding words are made specially applicable to farm laborers."
The reasoning of the first line of authorities above mentioned is not applicable in the case at bar. One of the reasons will be stated later. We must first call attention to the fact that our statute does not except from the workmen's compensation act "farm or agricultural *449
laborers," but employees engaged in agricultural or farm labor, a term somewhat broader than the former, or at least clearer. The Idaho statute excepts from the workmen's compensation act persons engaged in "agricultural pursuit," but the court, in the Idaho case above cited, does not make the distinction just mentioned. In that case an employee of a commercial thresher was held to be engaged in an agricultural pursuit, and we think, notwithstanding the contention of counsel for Roby to the contrary, that "agricultural labor" is equivalent to "Agricultural pursuit." We think that the distinction first above mentioned, namely between "farm or agricultural laborers" and "employees engaged in farm or agricultural labor" is not captious or too subtle. It was pointed out in the case of Hahn v. Grimm, supra, where it was held that one employed by an operator of a corn shredder for hire was not a farm laborer even though shredding of corn is an agricultural pursuit. The distinction was clearly stated in the case of Lowe v. Workmen's Compensation Bureau,
"One may be employed in agriculture and yet not be a `farmer' in the ordinary sense of the term, nor even a `farm laborer' as the term is used in our lien laws. They are not synonymous terms. The term `agriculture' is broader than either of the others. The expression `employed in agriculture' refers to the type of work that is done rather than to the form of the contract for the work." *450
The court then, referring and quoting partially from the Minnesota case above cited, further states:
"In any event, it must be clear the employee in that case was employed in agriculture. If a farmer threshes his own grain and employs men for that purpose, these men are employed in agriculture. They are engaged in harvesting crops. The crops are not fully harvested until they are ready for the farmer's market. The fact that the farmer may thresh for a neighbor or engage in what is called `commercial threshing' does not alter the work his employees are doing. They are harvesting crops even if doing it under special contract. Hence that the thresher in that case was what is known as a `commercial thresher' or one doing the threshing under an independent contract is immaterial, all are employed in the business, profession, or pursuit known as agriculture, and the policy of the law is to exclude such from the benefits of the law."
The same court, after mentioning the Colorado, Indiana, Michigan and New York cases, further states:
"An examination of the statutes involved in these cases shows a much more limited range for the exception. The Wisconsin statute expressly excludes farm laborers; as do the Colorado, Indiana, and Michigan statutes. Almost invariably it is the `farm laborer' who is excepted. But one may be employed in agriculture, and yet not be a `farm laborer,' though the Iowa decision already cited makes little, if any, distinction. Employed in `agriculture' is the term used in our statute. In the Colorado case cited it is shown clearly that the Colorado law excepts `farm and ranch laborers' only, and the court distinguished the Iowa case (Sylcord v. Horn) by showing that in Iowa the exception covers those `engaged in agricultural pursuits,' a much broader term, and thus the court accounts for the difference in the decisions."
The exception in this state is substantially like the exception in the statute of North Dakota, and we are unable to say that the reasoning of the foregoing case is unsound. Some kinds of labor, as, for instance, repair of machinery or buildings, are not inherently *451
agricultural, and may or may not be agricultural labor, depending on the circumstances. See note Ann. Cas. 1917 Dall. 12; 28 R.C.L. 719. In such case the nature of the particular work done is not the only criterion, and without deciding the point, it may be correct to say that then the employment as a whole must be considered. That rule, however, announced in a number of cases, has its limitations, and can have no application in cases under a statute like ours in which the nature of the work is purely or inherently agricultural, if we want to give the words of the statute their ordinary and natural meaning without distorting it. If a bush is a rosebush, it is such whether planted by A or by B. And if a statute provides that he who plants a rosebush shall not come within the scope of the workmen's compensation act, it would not matter whether the planter thereof were employed by A or by B. The reasoning is equally applicable when we substitute "doing agricultural labor" for planting a rosebush, if the labor is in fact just as inherently agricultural, as a rosebush is inherently a rosebush. The correctness of this reasoning is approved in the North Dakota case, supra. It is also approved in the Minnesota and Nebraska cases already cited. It is also approved in Sylcord v. Horn,
"There can be no doubt that shredding corn is a part *452 of carrying on a farm. Swaney (the farmer) could have employed defendant (the operator of the corn shredder) to plow a 40 acre field and defendant could have employed plaintiff (the employee) to assist him. The fact that defendant may have agreed to plow the entire field by contract would not change the character of the work, and both he and his assistant would still be engaged in farming operations."
The correctness of the foregoing reasoning is also clearly shown by what was stated by Mr. Justice Frick in the case of Jones v. Ind. Comm. of Utah, supra, under a statute which excepted agricultural laborers from the benefits of the workmen's compensation act. He stated:
"The statute excepts all `agricultural laborers.' The exception includes all persons engaged in the pursuit of agriculture. If, therefore, one who is engaged in threshing grain which is produced upon our farms is engaged in agricultural work, he is not within the provisions of our Industrial Act. It is conceded by the Industrial Commission, and by all concerned in this proceeding, that in case a farmer threshes his own grain with his own threshing machine he and all others who are assisting him are engaged in agriculture, and are thus excepted from the act. The commission, however, held that where grain is threshed by farmers or others for toll or hire the owner of the machine and those he employs to help him are not engaged in agriculture. In other words, if A pitches bundles to a threshing machine which is owned and operated by a farmer in threshing his own grain, then A is engaged in agriculture, and does not come within the provisions of the act; but if he pitches bundles to the same machine when it is used for threshing grain for toll or hire for farmers who pay toll, then he is not engaged in agriculture, and comes within the provisions of the act respecting compensation. According to this view, it is not the nature of the work which determines one's calling, but that is determined by the fact that the work is done by a particular person and is compensated for in a particular manner. If, therefore, a farmer purchases a tractor and gang plows, and plows his own *453 fields therewith, he is engaged in agriculture, but if he uses the tractor and plows in plowing his neighbor's fields for a stipulated price per acre he is not engaged in agriculture. To so hold is to make a distinction where there is no difference, and attempt to classify a calling, the classification of which is purely arbitrary and without a proper reason or foundation."
See also the case of Hill v. Ind. Comm.,
We think, accordingly, that, under a statute like ours, whether labor is done directly for a farmer or by an employee of one engaged in baling hay commercially is immaterial, and must be considered farm or agricultural labor if it is in fact such. And we shall proceed to determine the latter point. It was held in Mundell v. Swedlund (Idaho)
"Of course the storage and marketing of the crop raised whether it be fruit or grain, is just as much the work of agriculture as is the planting and cultivation thereof, or any other labor engaged in for the purpose of furthering, as a main or an incidental purpose, the cultivation of the ground or raising of crops."
And, in Lowe v. Workmen's Compensation Bureau, supra, the court stated that "The crops are not fully harvested until they are ready for the farmer's market." A more ready market may be found for hay which is baled. It is said in Volume 4, p. 2559, of the Book of Rural Life, an encyclopaedia, that "where hay is to be sold on the market, it must be baled in order to save space in storing and make it easier to handle." So it is said in Farmer's Bulletin 339, of the U.S. *455
Department of Agriculture, at page 25, that: "If hay is to be transported any considerable distance it is usually baled." And if that is true, there is hardly any reason for holding that baling hay is not an agricultural pursuit, as much so as is the baling of cotton. And we find, in jurisdictions where the specific point has been mentioned, that it has been so treated, namely, in Wisconsin, Washington, and California — the only three states, so far as we have found. In Powell v. Ind. Comm.,
"Where an employer owns a hay press which he moves from farm to farm baling hay on contract for the owners of said farms, and his employee is injured while working on the hay press on a farm of a person for whom hay is being baled on contract, such employee is engaged in farm labor at the time of his injury and *456 his employer is not liable under the Workmen's Compensation, Insurance and Safety Act."
Be that as it may. Other factors to be considered herein make it clear as to what the decision herein must necessarily be. We pointed out in Lamont v. Intermountain Realty Co.,
And other facts must be considered herein. On July 14, 1919, the attorney general of this state addressed a letter, in reply to an inquiry, to the State Treasurer of the State, who superintends the administration of the workmen's compensation fund. It is stated therein:
"Dear Sir: Replying to your letter of the 12th inst., will say that in my opinion threshers and those engaged in threshing operations are not subject to the provisions of the workmen's compensation act."
The letter is broad in terms, and doubtless was meant to refer to employees of commercial threshers as well as employees of farmers. The state treasurer acquiesced in the foregoing opinion, as will be seen later. Here we have a practical construction by two departments of the state. The legislature did not amend the law on the point here involved, and we must assume that the legislature acquiesced in the construction so *458
made. Lamont v. Intermountain Realty Co., supra. The foregoing construction and legislative acquiescence are important herein. 59 C.J. 1025; Equitable Life Ass'n. v. Thulemeyer,
One further fact. The workmen's compensation act was passed in 1915. We have before us the printed publications of the department which administers the compensation fund. We take judicial notice of the contents thereof. Bunten v. Rock Springs Grazing Ass'n.,
Reversed, with Direction.
RINER, Ch. J., and KIMBALL, J., concur.