513 P.2d 265 | Mont. | 1973
No. 12524
I N THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA ex r e 1 CLAYTON V. ROMERO, P e t i t i o n e r , DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF CASCADE-TRUMAN G. BRADFORD, JUDGE THEREOF, and J I M M I E McBRIDE,
Defendants. ORIGINAL PROCEEDING: Counsel of Record:
For P e t i t i o n e r : Hoyt, Bottomly and G a b r i e l , Great F a l l s , Montana R. V . Bottomly argued, Great F a l l s , Montana
For Defendants : Cure and Borer, Great F a l l s , Montana Orin R. Cure argued, Great F a l l s , Montana
Submitted: June 20, 1973 Decided : 1 3 1973 t4r. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court. This i s an original proceeding brought on t h e r e l a t i o n of Clayton V . Romero seeking a w r i t of supervisory control directed t o t h e respondents. After an ex parte hearing on June 4 , 1973, we issued an order t o show cause s e t t i n g a hearing f o r June 20, 1973, t o determine whether a writ of super- visory control or other appropriate writ should be issued.
P e t i t i o n e r ' s ground f o r seeking r e l i e f i s t h a t the d i s t r i c t court made a mistake of law which, i f allowed t o stand, would i n f l i c t a gross i n - j u s t i c e upon p e t i t i o n e r . Petitioner alleges t h a t he would be compelled t o proceed t o t r i a l based upon his complaint, and the respondent Jimmie R . McBride would have available t o him the defenses of assumption of r i s k and contributory negl igence a s contained i n respondent's answer. Petitioner fur- t h e r s t a t e s t h a t his remedy by appeal a f t e r f i n a l judgment i s wholly inade- quate and such a remedy would be tantamount t o a denial of j u s t i c e .
The d i s t r i c t court action arose out of an accident which occurred on a dryland wheat farm in Liberty County, Montana on o r about August 21, 1969. P e t i t i o n e r , Clayton V. Romero, was employed by the respondent Jimmie R . McBride in a custom combining operation. That i s , McBride would contract with various farmers t o combine some or a l l of t h e i r wheat. In t h i s partic- ular case, the farmer involved had several combines of h i s own working and simply hired McBride t o combine certain acreage and haul the grain t o an on-the-farm granary where i t was t o be stored. Romero had been employed by McBride in the S t a t e of Oklahoma and had been working f o r McBride f o r over a month. His job a t the time was t o haul grain in one of McBride's trucks t o a granary where he would dump the grain into the hopper of a grain auger. The grain auger was powered by a t r a c t o r and elevated the grain out of the hopper into the granary. Romero was seriously injured when his l e f t hand was caught i n the unguarded grain auger. McBride did not carry Workmen's Compensation insurance e i t h e r in the S t a t e of Oklahoma or t h e S t a t e of Montana.
The issue presented t o t h i s Court i s whether or not an employee of a custom combiner i s excluded from recovery a s being an agricultural employee, under t h e Montana Workmen's Compensation Act. Section 92-202, R.C.M. 1947, s t a t e s : "Defenses not excluded i n personal injury action a s a i nst employer i n nonhazardous occupation and c e r t a i n other occupations. The provisions of sec- t i o n 92-201 shall n o t apply t o actions t o recover damages f o r personal i n j u r i e s sustained by house- hold and domestic servants or those employed i n farming, dairying, agricultural , v i t i c u l t u r a l , and horticultural , stock o r poultry r a i s i n g , o r engaged i n the operation and maintenance of steam r a i 1 roads conducting i n t e r s t a t e commerce, o r persons whose employment is of a casual nature." Section 92-201, R.C.M. 1947, s t a t e s : "Defenses excl uded i n personal i n jury action-- negl iqence of empl oyee--fel low servant--assump- In an action t o recover damages f o r t i o n of risk. personal i n j u r i e s sustained by an employee i n the course of his employment, o r f o r death r e s u l t i n g from personal i n j u r i e s s o sustained, i t shall not be a defense: " (1 ) That the employee was negligent, unless such negl igence was w i 11 ful ; "(2) That the injury was caused by t h e negligence of a fellow employee; " ( 3 ) That the employee had assumed the r i s k s inherent i n , incident t o , or a r i s i n g out of his employment, or a r i s i n g from the f a i l u r e of the employer t o provide and maintain a reasonably s a f e place t o work, or reasonably s a f e t o o l s o r appliances." This Court finds t h a t the l e g i s l a t u r e in 1915, a t t h e time of t h e
passage of the Workmen's Compensation Act, intended t o include i n t h e exclu- sion of section 92-202, R.C.M. 1947, the normal a c t i v i t i e s and operation of the farm o r ranch by the owner and his employees as well as exchange of work and labor i n other casual farm related a c t i v i t i e s . We believe t h a t the l e g i s l a t u r e did not intend t o include custom combining. Custom combining i s a business requiring large sums t o be invested i n combines, trucks, t r a i l e r s and a l l i e d machinery. T h i s custom combiner s t a r t e d his season i n e a r l y spring i n the south and proceeded north through the midwest and on t o the s i t e of this accident. Nothing i n t h i s work i s associated w i t h t h e custom combiner's own farm operation.
We hold t h a t custom combining is a hazardous business operation and as such the employer i s required t o carry Workmen's Compensation and in the absence of such coverage, the employer loses a l l common law defenses as provided by section 92-201 , R.C .M. 1947, hereinbefore quoted.
The s t a t u t e applying to inherently hazardous occupations i s section 1947 92-301, R.C.M./i.'which s t a t e s : "Act applies to a l l inherently hazardous occupations as enumerated. This a c t i s intended to apply t o a l l inherently hazardous works and occupations within t h i s s t a t e , and i t i s the intention t o embrace a l l thereof in the four following sections, and the work and occu- pations enumerated in said sections are hereby declared to be hazardous, and any employer having workmen engaged in any of the hazardous works or occupations herein 1 i s ted s ha1 1 be considered as an employer engaged i n hazardous works and occupations as to a1 1 his employees." Sections 92-302, 92-303, 92-304, 92-305, and 92-306, R.C.M. 1947,
enumerate many occupations which are specifically declared to be hazardous and conclude with the following:
"If there be or a r i s e any hazardous occupation or work other than hereinbefore enumerated, i t shall come under t h i s act and i t s terms, conditions, and provisions as f u l l y and completely as i f hereinbefore enumerated." From these sections of the Revised Codes of Montana we hold t h a t
custom combining does come within the purview of the Workmen's Compensation Act. Workmen's Compensation laws, as with other social legislation, are t o be interpreted l i b e r a l l y in order t o provide as wide a coverage as i s poss- ible t o the workers of t h i s State. Naturally, of course, t h i s liberal interpretation must f a l l within the bounds s e t by s t a t u t e s of our legislature. Section 92-202, R.C.M. 1947, hereinbefore quoted, specifically excludes:
" * * * personal injuries sustained by * * * those employed in farming, dairying, agricultural, v i t i c u l - t u r a l , and horticultural, stock or poultry raising * * *It,
In t h i s particular action, we have a custom combiner who indepently contracts to cut a farmer's wheat, and in the course of t h i s operation one of his em- ployees i s injured. The custom combiner i s not employed in farming. He i s harvesting a crop which he did not r a i s e , nor own. The custom combiner was merely providing a service t o the farmer who hired him. This i s the only issue to which t h i s Court addresses i t s e l f , i . e . , a custom combiner i s not excluded from the Workmen's Compensation laws on the ground that he i s engaged in agricultural employment.
An extensive annotation on the appl ication of Workmen's Compen- sation Acts t o employees engaged i n farming appears i n 107 A.L.R. 977. Among the many cases therein discussed i s Nace v . Industrial Commission, 217 Wis. 267, 258 N.W. 781. In t h a t case the Wisconsin Supreme Court stated:
" * * * Decisions of other courts in compensation cases are ordinarily not helpful because of differences be- tween the language of the acts involved and our act. * * *"
This observation i s certainly applicable here b u t we feel t h a t the better reasoned authorities support our position.
For example, one of the l a t e r cases i s that considered by the 4 0r.A. ;A8"3f? Oregon Supreme Court in Westfall v . Tilley,/476 P.2d 797, 801 (1970). That case involved a custom s o i l fumigating and weed spraying business and simul- taneously the defendant conducted a bulb farm operation. The claimant was injured while unloading fumigating drums from the bed of a truck. The Court, in denying t h a t the work was excluded under t h e i r Workmen's Compensation Act stated:
"In determining each case whether work done i s incidental to farming within the Act, the t e s t i s the particular farming a c t i v i t y engaged in by that workman's own employer, not whether the work may be considered incidental t o farming in general. * * *"
In the case a t hand Romero was injured while in the employment of J i m i e
McBride, the custom combiner. This injury was incurred independently from any farming operation. McBride was an independent contractor, and t o deny the petitioner, Romero, re1 ief would appear t o be improper.
For this reason, the Court grants petitioner r e l i e f and d i r e c t s the d i s t r i c t court t o overrule the order denying the motion t o s t r i k e respondent's defenses of contributorv n e a l i a e n f i d as-tion of r i s k . [1]