Berry v. Department of Labor and Industries

• Court: Washington Supreme Court
• Writing for the Court: BEALS, Justice.
• Citation: Berry v. Department of Labor and Industries, 118 P.2d 785, 11 Wn2d 154 (Wash. 1941)
• Decision Date: 04 November 1941
• Docket Number: 28362.
• Parties: BERRY v. DEPARTMENT OF LABOR AND INDUSTRIES.

118 P.2d 785

11 Wn.2d 154

BERRY v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 28362.

Supreme Court of Washington

November 4, 1941

Department 2.

Proceeding under the Workmen's Compensation Act by Milton H. Berry employee of Vern R. Faires. The Department of Labor and Industries of the State of Washington rejected the claim and the claimant appealed to the superior court. From a judgment dismissing the proceeding, the claimant appeals.

Reversed with directions.

Appeal from Superior Court, King County; Calvin S Hall, Judge.

W. H Cook, and Kenneth Durham, both of Seattle, for appellant.

Smith Troy and Edward S. Franklin, both of Olympia, for respondent.

BEALS Justice.

Since 1930, Vern R. Faires has operated a 360 acre wheat farm near the city of Colfax, in Whitman county. Since 1934, he has also done a considerable amount of compensated hauling by motor truck. Up to 1937, his hauling operations were performed under a common carrier's permit but this permit was not renewed for the years 1938 and 1939.

Milton H. Berry, the appellant herein, was employed by Mr. Faires as a truck driver's helper, and August 7, 1939, while working in connection with the trucking operations, Mr. Berry sustained an injury to his right eye, which later necessitated its removal. He filed a claim for relief under the workmen's compensation act, which claim was rejected by the supervisor, upon the ground that Berry's employment was strictly agricultural in its nature, and was therefore without the protection of the act. The joint board having sustained the supervisor's action, Berry appealed to the superior court, where the action was tried, with the result that after a trial to the court sitting without a jury, findings of fact and conclusions of law were entered in favor of the department, followed by a judgment dismissing the proceeding, from which judgment Mr. Berry has appealed to this court.

Error is assigned upon the entry of two conclusions of law; upon the refusal of the trial court to enter judgment remanding the matter to the department, with instructions to allow appellant's claim; upon the entry of judgment dismissing appellant's appeal from the department; and upon the entry of the order denying appellant's motion for a new trial.

The assignments of error present one question only: Was appellant, at the time of his injury, employed by one engaged in an occupation not subject to the operation of the workmen's compensation act, having particular reference to Rem.Rev.Stat. (Sup.), § 7674, classifying certain occupations as extrahazardous?

It is not disputed that from 1934 to 1937, both years inclusive, Mr. Faires was operating his truck for hire. It is, however, contended that during the years 1938 and 1939, he was not engaged in the business of trucking for hire, but confined his trucking operations to an exchange of work with neighboring farmers. As to the year 1939, with which we are here concerned, the record does not support this contention. During the 1939 season, Mr. Faires hauled approximately ten thousand sacks of wheat for five farmers, charging the rates fixed by the department of public service. Concerning this work, Mr. Faires testified:

'Q. 1938 and 1939 you didn't renew your permit? A. I quit hauling for hire because I had as much as I could handle at home.

'Q. But you did haul in exchange? A. Yes, I did those two years; I exchanged work.

'Q. What do you mean by you exchanged work? A. Well, if a farmer has maybe a combine and another farmer has a truck, why he can haul that wheat for that man with the combine and then for that work the other man will harvest for him in exchange.

'Q. And was that actually done? A. Well, it wasn't gone through with this time.

'Q. That didn't go through then according to arrangement? A. No, because our wheat--we would have lost the crop this year because he couldn't do it in time, the conditions were that way.

'Q. Did any of them do any work on your farm then in pursuance to that arrangement? A. No, they haven't done anything to date.

'Q. But they have paid you this cash for your hauling work. A. We're pretty well settled up.

'Q. Prior years, 1934, 35, 36, they paid you on a 5¢ rate? A. Well, it depends on the distance; sometimes I got 5¢ and sometimes I got 3¢, but nothing under 3¢.

'Q. Well Mr. Faires, were you not then during the 1939 season pursuing the same procedure as in prior year? A. Well, it was except not so extensive. It wasn't a business; it was just to fill in my time.

'Q. But you did expect them to pay you the same rate? A. Well I would have to have the same rate, regardless of the haul.'

Mr. Faires stated that he had agreed with Warren Willson to haul the latter's wheat in exchange for Mr. Willson's service in harvesting the wheat on Mr. Faires' farm. As the wheat on the two farms ripened at the same time, Mr. Willson was unable to harvest Mr. Faires' wheat, and paid Mr. Faires for the hauling, partly in cash, partly by delivery of seed wheat, and partly by agreeing to do some threshing for Mr. Faires during the 1940 season. Vern Faires hired his brother to attend to the harvesting, meanwhile continuing to operate his truck. Mr. Faires testified that he hauled wheat for John and Paul Kunze, for which he was paid in cash. He hauled a small amount of wheat for Bill Willson, who in turn hauled the same amount of wheat for Warren Willson, for which Faires received credit. He hauled three hundred sacks of wheat for G. W. Ruff, thereby discharging a small amount which he owed Ruff, the latter paying the balance in cash.

It must be held that Mr. Faires, during the 1939 harvest season, was engaged in trucking for hire. Had Mr. Faires been exchanging his hauling service for work on his farm, a different question might have been presented, upon which we express no opinion.

Appellant was employed by Mr. Faires as the latter's helper during every harvest season from 1934 to 1939, inclusive, except during the season of 1937. In 1939, appellant reported for work about July 28th, and continued in Mr. Faires' employ as truck helper until August 14th, when he was unable to work longer on account of the injury to his eye. He loaded the sacks of grain upon the truck, and unloaded them at the warehouse, Mr. Faires doing the driving. During the 1939 season he worked steadily as helper on the truck, performing no other work whatever in connection with his employment. Appellant's employment ceased because of his injury prior to the time Mr. Faires hauled his own grain, as he customarily did.

On this appeal no question is presented concerning the cause or nature of appellant's injury. The department resisted appellant's claim upon the ground that his employer, Mr. Faires, was not subject to the act. Only questions of law pertinent to the rejection of the claim for the reason assigned, are presented on this appeal.

The following portions of the workmen's compensation act are pertinent to this inquiry:

'Employer means any person * * * engaged in this state in any extra-hazardous work * * *.

'Workman means every person in this state, who is engaged in the employment of any employer coming under this act * * *.' Rem.Rev.Stat. (Sup.), § 7675.

Prior to 1937, and at all times since, the statute included 'transfer, drayage and hauling,' among the enumerated extrahazardous occupations. Rem.Rev.Stat. § 7674. By Laws of 1937, chapter 211, § 1, § 7674, was amended to include 'teaming, truck driving and motor delivery, including drivers and helpers, in connection with any occupation except agriculture.' The section was amended by chapter 41, Laws of 1939, all of the language above quoted being unchanged, and now appears as Rem.Rev.Stat. (Sup.) § 7674.

Respondent argues that Mr. Faires' trucking was in connection with agriculture, and that under the statute last above quoted, such trucking was not an extrahazardous occupation, and was therefore without the protection of the act. Johnson v. Department of Labor & Industries, 182 Wash. 351, 47 P.2d 6. On the other hand, appellant contends that in using his truck for hauling grain for compensation as he did, that phase of Mr. Faires' activities constituted an occupation entirely separate and distinct from the management of his farm; that the transfer business was nowise connected with agriculture, within the meaning of the statute; that Mr. Faires was engaged in an extrahazardous occupation under the statute; and that appellant, as an employee, is entitled to the protection of the act.

It is, of course true that unless Mr. Faires was engaged in one of the enumerated extrahazardous occupations, or in an occupation classified by the department as extrahazardous, he was not within the compulsory operation of the act, and appellant, as his employee, would be entitled to no benefit thereunder. Parker v. Pantages Theater Co., 143 Wash. 176, 254 P. 1083.

An employer may, at one and the same time, be engaged in two distinct employments, one of which is extrahazardous and within the scope of the statute, while the other is not. To the extent that one of the employer's activities is extrahazardous, he is an employer within the purview of the act, and subject thereto. The test to be applied to Mr. Faires' trucking operations, in...