Jones v. Industrial Commission of Utah

• Citation: 55 Utah 489,187 P. 833
• Decision Date: 30 January 1920
• Docket Number: 3412
• Court: Supreme Court of Utah
• Parties: JONES et al. v. INDUSTRIAL COMMISSION OF UTAH et al

187 P. 833

55 Utah 489

JONES et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 3412

Supreme Court of Utah

January 30, 1920

Original proceedings by David Jones and others for writ of certiorari to the Industrial Commission, to review the proceedings of the commission in awarding compensation for the death of one Joseph Hyrum Rowley.

FINDINGS, CONCLUSIONS, AND AWARD OF COMMISSION SET ASIDE AND ANNULLED.

Harvey Cluff, of Provo, for plaintiffs.

Dan B Shields, Atty. Gen., and O. C. Dalby, James H. Wolfe, and H Van Dam, Jr., Asst. Attys. Gen., for defendants.

THURMAN J. CORFMAN, C. J., FRICK, J., concurring. GIDEON, J., WEBER, J., dissenting.

OPINION

THURMAN, J.

Plaintiffs have applied to this court for a writ of certiorari to review the proceedings of the Industrial Commission of Utah in awarding compensation for the death of one Joseph Hyrum Rowley, which occurred August 13, 1918.

The plaintiffs were the owners of a threshing machine, and Rowley was in their employ when the accident occurred which resulted in his death. The defendant commission, among other things, found that the machine was operated primarily for the purpose of threshing the crops of the owners of the machine, but inasmuch as they were preparing to thresh the crop of a son and renter of one of the owners, and did thresh a part of said crop on the day of the accident, and also threshed for the public during the season of 1918, the commission concluded that the plaintiffs were engaged in commercial threshing, that Rowley was not an agricultural laborer, and that therefore compensation should be awarded to his minor dependents, and funeral expenses allowed. These findings and conclusions are challenged by plaintiffs, and they insist that the commission was without jurisdiction to make the award.

The statute expressly excludes from its operation "agricultural laborers and domestic servants. Comp. Laws 1917, section 3111, as amended in Session Laws 1919, page 156.

While many questions are presented by plaintiffs for our consideration, the only question that need be determined is, Was the deceased, Rowley, at the time of his death, employed as an "agricultural laborer" as that term is used in the Workmen's Compensation Act? If he was, the commission was without jurisdiction to make the award; if he was not, the findings and conclusions of the commission are unassailable.

The facts pertinent to a determination of the question are, in substance, as follows: The plaintiffs are all farmers residing in Utah county. Several years ago, having suffered considerable inconvenience and loss in failing to get their grain threshed in due season, they conceived the idea of co-operating together in the purchase of a machine, as found by the commission, primarily for the purpose of threshing their own grain. During the first two or three years, while paying for the machine, they did considerable threshing for the public. After that they did less, and limited their outside threshing generally to crops lying along the route from the farm of one co-owner to another, and on occasions when it would not seriously interfere with the threshing of their own crops. The commission found that they did commercial threshing for the public during the season of 1918, but the undisputed fact is it was not done until after the unfortunate accident to which we have referred. No grain whatever was threshed in 1918 until after the death of Rowley. They were making preparations to thresh on the day of the accident, and the deceased was assisting in the preparations. He was sent with a team and wagon for a tank of water for the engine, and was instructed not to ride on the tank, as it was considered dangerous. He disregarded the instruction, and not only rode on the tank, but attempted to do so by standing thereon, from which position he fell or was thrown, resulting in his death. After his death on the same day plaintiffs proceeded to thresh the grain of one Calvin Meldrum, a son and renter of James Meldrum, one of the owners of the machine. The grain was grown on the farm of said owner, and he and his son resided together on the farm.

After the accident the owners of the machine, acting upon legal advice, procured insurance under the Industrial Act, and did more or less custom work during the remainder of the season.

The owners of the machine were not formally organized, either as a corporation or voluntary association. Their respective interests were denominated "shares," each share representing a cash contribution of fifty dollars to the purchase of the machine. Together they employed three or four men, who were paid by the owners so much for every hundred bushels threshed. The owners themselves who worked on the machine were paid in the same manner. It is contended by plaintiffs that less than four men were employed by them, but we are of the opinion the commission was justified in finding otherwise.

The number of adjudicated cases respecting questions analogous to the one here presented is exceedingly limited. This should not be a matter of wonder when we consider that workmen's compensation laws are, in most cases, of comparatively recent origin. We have found no case substantially identical in its facts with the present case. The nearest analogy we have been able to find are cases in which threshing machines or other farm machinery have been devoted entirely to custom work for the community, instead of being used principally on the crops of those who own the machine. Even as to those cases there is a marked conflict among the authorities. Some of the cases hold that when a farm machine, such as a hay bailer, corn-shredder, or threshing machine, is used even for custom work, the business is farm work, and the employes employed thereon are farm laborers. Other cases take the contrary view. We find no case whatever which holds that the work is not farming, and the employes not farm laborers, where the machine is used primarily by the owners for use on their own farms. The cases we have reviewed holding that where machines are used for custom work the employes thereon are not farm laborers are as follows:

White v. Loades, 178 A.D. 236, 164 N.Y.S. 1023, in which it is held that a man traveling through the country with a threshing machine and stopping at different farms to thresh grain and beans is not engaged in farming, and his employes are not farm laborers, within the meaning of the New York Workmen's Compensation Act (Consol. Laws, chapter 67).

Vincent v. Taylor Bros., 180 A.D. 818, 168 N.Y.S. 287, in which the court seems inclined to hold to the same effect, although the case was not decided on account of a defective record.

In re Boyer, a case from the Appellate Court of Indiana, 117 N.E. 507, in which the facts are substantially similar to those in the New York case first above cited and the holding the same. In the course of the opinion, however, the court says:

"If farmers generally owned threshing outfits and were in the habit of threshing their own grain, and the claimant had been employed by the farmers to assist in the work of threshing, and had been injured while doing such work, a more serious question would be presented."

Miller & Lux, Inc., v. Industrial Acc. Com. of Cal. et al., 32 Cal.App. 250, 162 P. 651. This case can be more easily comprehended by the reader by quoting two paragraphs from the headnotes which clearly indicate both the facts and the law as determined by the courts:

"One employed as carpenter and foreman in charge of the construction of a cottage for employes upon one of the numerous properties of a large corporation, chartered, among other things, to construct buildings necessary to its business and whose business had for years included the construction, improvement, etc., of buildings on its properties, requiring the constant employment of carpenters thereon, was employed in the 'usual course of the trade, business, profession, or occupation of his employer' within the Workmen's Compensation Act.

"Such employe did not come within the express exclusion of section 14 of the Workmen's Compensation Act, as one engaged in 'farm labor,' notwithstanding the building which he was engaged in constructing was upon a ranch property of his employer."

Shafter Estate Co. v. Industrial Acc. Com. of California et al., 175 Cal. 522, 166 P. 24. For the reasons stated in the case next preceding, we quote from this case two paragraphs of the syllabus:

"Where plaintiff's decedent was employed to patrol defendant's ranch as gamekeeper, and was also expressly instructed to aid defendant's lessees in killing a deer, and in the course of the hunt he was accidentally shot by one of the lessees, the accident occurred in the course of the employment.

"Workmen's Compensation Act (Acts 1913, page 279, section 14, excluding from the beneficiaries thereof 'any employe engaged in farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising,' does not include a gamekeeper employed to patrol a ranch to eject poachers and to aid in hunting deer."

The California cases can hardly be said to be even remotely in point. It would require an exceedingly strained interpretation of the law to exclude these employes from the operation of the act on the grounds that they were farm laborers.

Defendant also cites the case of Anderson v. Glen, Indiana Industrial Board No. 32, as the same appears in the notes to 13 N. C. C. A. 84. This case is pertinent to the point that when a person is employed by employers engaged as independent contractors loading hay, shredding fodder and filling silos as a distinct and independent business the employes are not farm laborers.

It must be conceded that Indiana, as far as its Industrial...