Baldwin v. Roby, 2090

• Decision Date: 18 September 1939
• Docket Number: 2090
• Citation: 93 P.2d 940,54 Wyo. 439
• Parties: BALDWIN, STATE TREASURER v. ROBY
• Court: Wyoming Supreme Court

93 P.2d 940

54 Wyo. 439

BALDWIN, STATE TREASURER v. ROBY

No. 2090

Supreme Court of Wyoming

September 18, 1939

APPEAL from the District Court, Park County; P. W. METZ, Judge.

Proceeding under the Workmen's Compensation Law by Leslie Roby claimant, for compensation for an injury received by the claimant while in the employment of Owen Hallam. From a judgment awarding compensation, J. Kirk Baldwin, State Treasurer of the State of Wyoming, appeals.

Reversed, with Direction.

For the appellant, the cause was submitted upon the brief of Ewing T Kerr, Attorney General; Harold I. Bacheller, Deputy Attorney General; and Arthur Kline, Assistant Attorney General, all of Cheyenne.

The verdict and judgment is against the law and the evidence. The employee failed to prove that the injury or loss of his eye was due to the dust getting into his eye. There was no medical testimony offered during the hearing in the lower court. The statements of Dr. Mills and Dr. Morrison were not offered in evidence and are not a part of the record. Sec 124-113, R. S. 1931; Wright v. Conway, 34 Wyo. 1, at p. 22. It is impossible to ascertain from the record whether the loss of employee's eye was due to an infection caused by dust or by reason of a previous injury. Davis v. Judson (Cal.) 113 P. 147; Richey v. Butler (Cal.) 180 P. 652; Bailey v. Niebruger, 211 Ill.App. 82; Kelly v. Jones (Ill.) 125 N.E. 334; Ray v. Railway, 232 S.W. 268; Fuher v. Morlend Co., 116 A. 61; Gulf R. Co. v. Gaddis, 208 S.W. 895. At the time of his alleged injury, the employee was engaged in farm or agricultural labor. There is a conflict of authority upon the question as to whether an employee engaged in baling hay is within the exemptions provided for in Section 124-105, R. S. 1931; Hight v. Industrial Commission (Ariz.) 34 P.2d 404; Rush v. Heffelbower (Mich.) 196 N.W. 185; State v. District Court (Minn.) 168 N.W. 130; Barney v. Anderson (Wash.) 199 P. 452; Guerrieri v. Commission (Wash.) 146 P. 608; 71 C. J. 380; State v. District Court (Minn.) 168 N.W. 130. Hay baling is not an extra-hazardous occupation as defined by our compensation law. Sec. 124-106-7, R. S. 1931 cannot be said to include the occupation of hay baling. Leslie v. City of Casper, 42 Wyo. 44, 48. The Washington compensation act confers discretion upon the Board in determining what is extra-hazardous occupation, whereas no such discretion is provided in the Wyoming Act. O'Connor v. Weber (N. Y.) 114 N.E. 799; Words and Phrases, Vol. 3, Second Series, pp. 384, 385; Gibson v. Wood (Texas) 199 S.W. 893; Menke v. Hauber (Kan.) 160 P. 1017; Electric Company v. Woods, 230 S.W. 498. The liberal construction of a statute does not call for a meaning beyond or out-side of the legislative intent. Davis v. Grant Company (N. H.) 185 A. 889. Respondent was engaged as a farmer or agricultural laborer at the time of his alleged injury and the claim is not within the provisions of the Wyoming compensation law.

The cause was submitted for the respondent upon the brief of William W. Fell and Kerper and Kerper of Cody.

A perusal of the testimony discloses without argument a direct and uninterrupted chain of events, beginning with the employee's getting dust in his eye while working in his occupation around the hay-baler, the beginning and continuation of infection in the eye; the breaking of the eyeball; its subsequent treatment by Dr. Morrison in Billings, and finally the removal of the eye. The record also includes the formal claims and reports of the doctors who treated the eye, which under Section 124-113, R. S. 1931, form part of the basis for the hearing and should be considered herein. The occupation of the claimant at the time of the accident was not an agricultural pursuit and is not within the exception of the statute; it is extra-hazardous within the meaning of the statute. The case of Wright v. Conway, 34 Wyo. 1, cited by appellant, was a malpractice suit and differs on the facts. If the injury did not cause the loss of the eye, the state had a right to prove that fact in defense. Hearsay testimony introduced without objection is entitled to consideration. The employee was competent to testify as to the condition of his eye. Sections 124-104, 6, 7 define extra-hazardous occupation. The doctrine of "ejusdem generis" cannot be applied to a statute drawn in this manner. In any event, all that doctrine does is to limit the general words to things of the same kind, as enumerated by the specific words, and a hay baling machine is of the same kind and within the general definition of factories, workshops or mills specifically mentioned in the statute. Harbour Company v. Industrial Commission (Oklahoma) 296 P. 456; 49 C. J. 1329; Ideal Bakery v. Schryver, 43 Wyo. 124. No such question was considered in Leslie v. City of Casper, 24 Wyo. 44. Barney v. Anderson (Wash.) 199 P. 452, cited by appellant, was not an industrial accident case. We have been unable to perceive that any of the cases cited by appellant apply to the facts of this controversy. In the instant case, the accident occurred on the premises where the mechanical power was used in manufacturing and preparing the hay for sale. Casey v. Barber, 202 F. 1. Claimant was engaged in an occupation relating to the processing of a farm product, which is not an agricultural pursuit. Hahn v. Grimm (Ind.) 198 N.E. 93; Cook v. Massey (Ida.) 220 P. 1088. The operation took place in February, which is not a hay harvesting season, and the preparation of the product for commercial use was in the nature of an industrial or commercial pursuit. 71 C. J. 377; Peterson v. State Bank (Minn.) 230 N.W. 124, 207 N.W. 831. The court can take judicial notice of the fact that previously the operation of hay baling was carried on in mills. This court must determine what the legislature means by agricultural labor. Anderson v. Glenn, 13 N. C. C. A. 84. The only connection that the employee in the instant case had with "farm labor" was that he was processing an article grown on the farm. Commission v. Shadeowen, 187 P. 926; Hoshiko v. Commission (Colo.) 266 P. 1114; In re Boyer, 117 N.E. 507; White v. Londes, 164 N.Y.S. 1023; Nace v. Commission, 258 N.W. 781; Cook v. Massey, 220 P. 1088. We submit that the instant case comes within the protection of the Workmen's Compensation Act, and the award should be affirmed.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

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 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 machinery is used * * * changing, altering or repairing any article or commodity for sale or otherwise together with 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...