Keefover v. Vasey

• Decision Date: 07 July 1924
• Docket Number: 23982
• Parties: ALFRED R. KEEFOVER, APPELLANT, v. JAMES VASEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

199 N.W. 799

112 Neb. 424

ALFRED R. KEEFOVER, APPELLANT, v. JAMES VASEY ET AL., APPELLEES

No. 23982

Supreme Court of Nebraska

July 7, 1924

APPEAL from the district court for Gage county: LEONARD W. COLBY JUDGE. Affirmed.

AFFIRMED.

McCandless & McGuire and Hazlett, Jack & Laughlin, for appellant.

Sackett & Brewster, Sabin & Vasey and Rinaker, Kidd & Delehant contra.

Lester L. Dunn and Dale P. Stough, amici curiae.

Heard before MORRISSEY, C. J., DAY, GOOD, and THOMPSON, JJ., and REDICK, District Judge.

OPINION

REDICK, District Judge.

This is a proceeding under the employers' liability law to recover for the loss of an arm by the plaintiff while working in connection with a threshing machine. Compensation was allowed by the commissioner, but on appeal to the district court the award was set aside, and plaintiff has appealed to this court.

At the outset we deem it appropriate to remark that the court has been greatly aided by the exhaustive briefs and logical oral argument of counsel for both parties. All the decided cases bearing upon the questions involved have been cited, and have been discussed and distinguished with great learning by counsel on both sides.

The facts out of which the controversy arises, with one unimportant exception, are without dispute. The defendants are all farmers carrying on their pursuits near the town of Liberty in Gage county, Nebraska. They are owners or operators of neighboring farms. Prior to 1920 the farmers in that vicinity had suffered considerable delay, and consequent loss of market, in having their small grain threshed by traveling threshers, and concluded it would be to their advantage to club together and purchase a thresher for the purpose of threshing their own grain, and in that year defendants Clopper and Vasey, with three other farmers Bradley, Goin, and Norris, purchased the thresher in question, each owning a one-fifth interest, the arrangement being that each owner should pay into the "company" proportionately for the threshing work done for him. The thresher purchased was the smallest size but one, but large enough to take care of some outside work. Prior to 1923 the machine was operated, threshing first for the owners and then for hire for others in the vicinity. Some changes occurred in the personnel of the owners, and in February, 1923, they were defendants Vasey, Clopper, Douglas (2), Rounds, and Stahl. In that month Goin sold his interest to the defendants Douglas, which resulted in leaving a gap of several miles between the farm of Bradley and the other owners, and thereupon, February 19, 1923, an agreement was entered into whereby the defendants purchased the interest of Bradley in the machine for the sum of $ 150 cash and the assumption of Bradley's proportion of the purchase money note given for the machine, and on the condition insisted upon by Bradley that the defendants would thresh Bradley's grain during the season of 1923 as the first work, free of charge, subject, however, to the further condition that if the cost of such threshing was more or less than $ 100, the difference should be adjusted.

The plaintiff is a farmer, and for several years prior to the accident farmed an eighty-acre tract in the vicinity of the village of Liberty, spending about one-half of his time tending his own crop, the other half in working for his neighbors at odd jobs. During the first ten days of July, 1923, he was engaged in working around for several of his neighbors, to wit: Defendant Vasey, one Emerson, and one McGuire, at a daily wage of $ 5. About July 16 he was employed by defendant Vasey to work with the thresher. His duties were first, to fix up the threshing machine and put it in running condition, and then to "tend the separator." His wages were not fixed until after the accident, when $ 5 a day was agreed upon. The thresher having been started up and tried out, on the morning of July 21 the work of threshing was commenced at Bradley's farm, where some grain was threshed before dinner. After dinner, about 2 o'clock, something went wrong, the machine was stopped, and plaintiff, having made some repairs and signaled the engineer to go ahead, was attempting to fill an oil cup on the cylinder shaft, when the feeder belt suddenly broke, caught plaintiff's right arm, and almost instantly jerked it off at the elbow, necessitating amputation between the elbow and the shoulder.

The question for determination is whether or not plaintiff's injuries are compensable under the employers' liability law of this state, and, specifically, whether or not plaintiff and defendants are excluded from the benefits of said law by the following provision thereof, being subdivision 2, sec. 3029, Comp. St. 1922, reading as follows:

"(2) The following are declared not to be hazardous occupations and not within the provisions of this act; Employers of household domestic servants and employers of farm laborers."

Our problem requires us to discover the intention of the legislature in the use of the four words "employers of farm laborers." Our attention has not been called to any statute making use of these precise terms. In Iowa the excluding words are, "farm or other laborer engaged in agricultural pursuits;" Minnesota, "farm laborers;" Utah, "agricultural laborers;" Idaho, "agricultural pursuits;" Michigan, "farm laborers;" Indiana, "farm or agricultural laborers," and "employers of such persons;" and New York, "farm laborers." It is worthy of note that in these other states the emphasis seems to be placed upon the exclusion of the laborer, while in this state it rests upon the exclusion of the employer of such labor. It would seem, therefore, that the legislature (composed to a large extent of farmers) by these words have pointed out a class which it intended to exclude from the law, which class consists exclusively, or nearly so, of farmers; and while the classification, as remarked by Schneider, Workmen's Compensation Law, sec. 31, quoted by plaintiff's counsel, "was perhaps based more on legislative expedience than on sound reason," still it is the law, and if there is any question as to the propriety of the classification, that question is not now before us.

It is the contention of plaintiff that defendants in the operation of the threshing machine were not farmers engaged in farm labor, but were engaged in a commercial business and were commercial threshers, as those terms are used in the cases cited, and, further that the plaintiff, at the time of the accident, was not engaged in farm labor. The contention is based upon the fact that in prior years defendants had threshed for others, and, though this is in dispute, that it was the intention to thresh for others in 1923 after defendants' grain had been cared for, and specially the further fact that, at the time of the accident, defendants were engaged in threshing wheat for Bradley who had sold his interest in the machine, wherefore, it is claimed the cooperative feature was absent.

Quite a number of cases discuss the questions as to what is "farm labor" and who are "farm laborers," but comparatively few deal with the operations of threshing machines and analogous operations, as of corn shellers, corn shredders, and machines for chopping feed. In the cases last referred to, for the purpose of solving these questions, a classification has been recognized, based upon the method in which the operation is carried out. In the first class are placed those cases in which the machine is independently owned by an individual or company not engaged in farming, and who, with a crew, travels about the country from farm to farm threshing grain for an agreed compensation. The members of this class are termed commercial threshers, as the business is carried on independently of farming as generally understood. In the second class are placed those farmers who own their own machines and operate solely upon their own products, and associations of farmers who own the...