Keeney v. Beasman

• Decision Date: 16 January 1936
• Docket Number: 78.
• Citation: 182 A. 566,169 Md. 582
• Parties: KEENEY v. BEASMAN ET AL.
• Court: Maryland Court of Appeals

182 A. 566

169 Md. 582

KEENEY v. BEASMAN ET AL.

No. 78.

Court of Appeals of Maryland

January 16, 1936

Appeal from Court of Common Pleas of Baltimore City; Eli Frank Judge.

Proceeding under the Workmen's Compensation Law by Dorothy Keeney widow, claimant, opposed by Frank B. Beasman, employer, and the Maryland Casualty Company, insurer. From a judgment for employer and insurer, claimant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, SHEHAN and JOHNSON, JJ.

Maurice J. Pressman, of Baltimore, for appellant.

Robert E. Coughlan, Jr., and Roszel C. Thomsen, both of Baltimore, for appellees.

OFFUTT Judge.

Frank B. Beasman owns and operates a farm known as the "Fair Haven Farms Dairy" near Sykesville, Carroll county, Md. The entire farm is utilized for the production of milk, which he sells in bulk and in bottles and distributes over a retail milk route from a truck, and in connection with it there is a 300-gallon pasteuring plant. It contains about 600 acres of ground, of which part is in woodland, part in pasture, and the remainder in grass and grain, except for small lots used for gardens and the curtilages adjacent to dwellings occupied by the owner and his tenants The crops grown on the farm are fed on the place, the produce of the gardens is consumed by Beasman and his employees, none of the crops are sold, and, in short, altogether it constitutes a largely self-contained and complete dairying plant. The operation and management of it requires the kind of labor ordinarily incident to the management of any farm, such as tilling the soil, planting, cultivating, and harvesting the crops, caring for the livestock, and marketing the farm products.

On October 10, 1934, Merhl Keeney, while employed by Beasman, as a laborer on the farm, was engaged in removing a stump from an alfalfa field, and in the course of his work, while attempting to make a hole under the stump in which to place dynamite, he ran a sliver of wood in his finger, causing an injury which eventually resulted in his death. His duties while employed by Beasman were principally farm duties; he was required to milk cows, cultivate crops, work on a hay wagon, drive a team, occasionally he cut hedges, washed buckets in the pasteurizing plant, did some cementing, and painted some farm implements.

On January 30, 1935, the sworn claim for compensation of Mrs. Dorothy Keeney, the widow of Merhl Keeney and their two infant children, was filed with the State Industrial Accident Commission, and on February 9th it received an "Employer's Report of Injury" signed by Beasman, in which he described the nature and result of the accident and stated that it had occurred in the course of Keeney's employment, and that medical attention had been rendered. The surgeon's report showed that such services had been engaged by the employer.

A hearing on the claim was requested by the employer and insurer, and the commission, after hearing the parties, disallowed the claim apparently on the ground that at the time of the accident Keeney was a farm laborer engaged in service incidental to, and in connection with, agricultural pursuits or developments. From that finding the claimants appealed to the court of common pleas of Baltimore city, where the case was heard by the court without a jury. At the conclusion of the hearing, the court directed a verdict for the employer and insurer, and from that judgment this appeal was taken.

In addition to the facts stated above, it appeared that at the time of the accident there was in force a policy of insurance issued by the Maryland Casualty Company to Beasman, having the following coverage: "Farm Labor and Dairymen: All employees of whatever nature excluding in servants engaged upon or in connection with such farm, including Drivers, Chauffeurs (no private) and their Helpers, Outservants, Occasional Outservants, also Managers, Superintendents and Foremen if engaged wholly or partly in field work," and the insurer in assumed compliance with the Workmen's Compensation Law (Code Pub.Gen.Laws 1924, art. 101, § 1 et seq., as amended) certified the insurance to the commission, and in the notice stated that the business covered by the policy was that of "Farm Labor and Dairyman."

The appeal presents two questions: (1) Was the work in which Keeney was engaged at the time of the accident farm labor within the meaning of the Workmen's Compensation Law? and (2) assuming that it was not, are the employer and insurer estopped from asserting that fact as a defense to appellants' claim by the policy of insurance issued upon his application to the employer by the insurer, and certified by the insurer to the State Industrial Accident Commission as in compliance with that law?

Code, art. 101, § 65 subsec. (3), as amended by chapter 354, Acts 1933, provides that " 'Employee' * * * shall not include farm laborers. 'Farm laborers,' as used in this Article, shall mean any employees who, at the time of the accident, are engaged in rendering any agricultural service, including the threshing or harvesting of crops, or who, at the time of the accident, are engaged in service incidental to and in connection with agricultural pursuits or developments, whether the employer be the farmer or other person undertaking or contracting with the farmer to perform any such agricultural service, pursuit or development. This Article shall not apply to cutters of cord wood or fire wood, farm laborers, domestic servants, nor to country blacksmiths, wheelwrights or similar rural employments, unless these employments elect to come under this Article as provided in Section 33." If the employee at the time of the accident was engaged in farm labor as defined by the act, then by the express and explicit language of the statute its provisions were not applicable to him. It appears from that definition that it was the purpose of the Legislature to except from its provisions employees engaged in rendering "any" service "incidental to or connected with" agricultural pursuits "or developments."

The appellants contend that the main business of the employer was dairying; that the operation of the farm was merely incidental to that business; that dairying is not farming, nor is it incidental to, or connected with, any agricultural service, pursuit, or development; that at the time of the accident the employee was not a "farm laborer," within the definition of the statute; and that therefore its provisions were applicable to his case. The appellees assert the converse of that proposition.

Literally, agri cultura means the tillage or cultivation of the soil. But, like many words compounded of different elements, it has a meaning of its own broader than that of its elements considered separately, for from time immemorial it has been regarded as synonymous with husbandry, and includes, not only the cultivation of the soil and the raising of crops, but also "gathering in the crops and raising live stock," Oxford Dictionary, and as a natural concomitant of those activities, marketing the products of the soil, the increase and the products yielded by the stock, such as wool and milk. That has been so from the earliest times.

Meliboeus, himself a husbandman in the first of Virgil's Eclogues, speaks to Tityrus, another farmer, who is going into exile, driving his herds before him, of the pleasant ploughed fields, as though the cultivation of the fields and the management of herds were branches of the same business, and in the first book of the Georgics, which was written for the rehabilitation of agriculture in Italy, the care and management of cattle is treated as a branch of agriculture, and Anthon stated that Virgil's rules concerning the care of cattle were taken from the works of the "ancient agricultural writers of his own country." In the Oxford Dictionary it is said that the restriction of the word to tillage alone is rare.

In Rawle's Ed. of Bouvier's Law Dictionary this definition is given: "The cultivation of soil for food products or any other useful or valuable growths of the field or garden; tillage, husbandry; also, by extension, farming, including any industry practised by a cultivator of the soil in connection with such cultivation, as breeding and rearing of stock, dairying," etc. In Mayor, etc., of City of Philadelphia v. Davis, 6 Watts & S. (Pa.) 269, 279, "farm products" were held to be "swine, horses, neat cattle, sheep, manure, cordwood, hay," as well as "vegetables, fruit, eggs, milk, butter, lard, and other provisions for the mouth." In Davis v. Industrial Commission, 59 Utah, 607, 206 P. 267, 268, a sheep herder was held to be an "agricultural laborer." In State ex rel. Brittain v. Hayes, 143 La. 39, 78 So. 143, it was held that a farmer who goes from place to place selling at retail the products of his farm is only pursuing the business or occupation of a farmer, in Hill v. Georgia Casualty Co. (Tex.Com.App.) 45 S.W.2d 566, 567, it was held that one employed at a nursery for the propagation of trees, vines, shrubs, etc., was an agricultural laborer, and in Greischar v. St. Mary's College, 176 Minn. 100, 222 N.W. 525, 526, it was held that milking cows and plowing the fields on a dairy farm must "be considered the work of a farm laborer, just the same as would be the same work upon any other sort of a farm."

These statements and conclusions are all consistent with the decision of this court in Beyer v. Decker, 159 Md 289, 150 A. 804, 805. In that case Decker the employer owned and operated farms in Cecil county on which he "carried on a dairying business." He had a milk route on which he delivered milk, and he shipped any surplus to a wholesaler. Beyer, the claimant, was regularly employed in dairy work, and drove the horse...