Lowe v. N.D. Workmen's Comp. Bureau

• Decision Date: 20 January 1936
• Docket Number: No. 6390.,6390.
• Citation: 264 N.W. 837,66 N.D. 246
• Parties: LOWE v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

66 N.D. 246

264 N.W. 837

LOWE

v.NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 6390.

Supreme Court of North Dakota.

Jan. 20, 1936.

Syllabus by the Court.

1. One employed in agriculture is not engaged in a “hazardous employment” covered by the Workmen's Compensation Law of this state.

2. Agriculture is the science of cultivating the ground and raising and harvesting crops and includes the threshing of the grain so raised.

3. The employee of the owner of a combine, used in commercial threshing under a contract to harvest and thresh the grain of another, who is injured while working with such combine in the harvesting and threshing of grain is engaged in agriculture.

Appeal from District Court, Walsh County; G. Grimson, Judge.

Proceeding under the Workmen's Compensation Act by Lewis Lowe, employee. From an order of the district court overruling a demurrer to the complaint, on review of a decision of the Workmen's Compensation Bureau, the Bureau appeals.

Reversed.

P. O. Sathre, Atty. Gen., and Milton K. Higgins, Asst. Atty. Gen., for appellant.

Bangs, Hamilton, & Bangs, of Grand Forks, for respondent.

BURR, Judge.

The plaintiff was employed by the owner of a combine who had contracted to harvest and thresh the crops of a farmer. It is evident the cutting and threshing were all one process because of the machine used. While so working, the plaintiff was injured and now seeks to recover compensation from the workmen's compensation fund.

This matter is before us on demurrer to the complaint and requires the construction of the term “hazardous employment” as defined in section 396a2 of the Supplement, wherein those employed in “agriculture” are excepted from the hazardous employments governed by the Workmen's Compensation Act. The trial court overruled the demurrer, and defendant appeals.

It is admitted that if plaintiff was injured while employed in “agriculture,” as contemplated by the Workmen's Compensation Act, he has no claim against the fund.

The purpose of the Workmen's Compensation Act, chapter 162 of the Laws of 1919 and amendments thereof (section 396a1 et seq. of Supp.), is to provide sure and certain relief, regardless of questions of fault, for all workmen injured in hazardous employments, etc. (section 1 of the act). For the purpose of this act, however, one employed in “agriculture” is not considered as being employed in such “hazardous employment” as is defined by the act.

The term “agriculture” is defined by Webster as, “The art or science of cultivating the ground and raising and harvesting crops, * * * tillage; husbandry; farming; in a broader sense the science and art of the production of plants and animals useful to man including to a variable extent the preparation of these products for man's use and their disposal by marketing or otherwise.” See, also, similar definitions in Century and Standard Dictionaries.

In Dillard v. Webb, 55 Ala. 468, 474, the court said the term “agriculture” included the “raising and harvesting of crops,” and “refers to the field, or farm, with all its wants, appointments, and products.”

One may be employed in agriculture and yet not be a “farmer” in the ordinary sense of the term, nor even a “farm laborer” as the term is used in our lien laws. They are not synonymous terms. The term “agriculture” is broader than either of the others.

The expression “employed in agriculture” refers to the type of work that is done rather than to the form of the contract for the work. As shown in State ex rel. Bykle v. District Court, 140 Minn. 398, 168 N.W. 130, 131, L.R.A.1918F, 198, “The important question is: What is the nature of the work? The work is done upon a farm. It is done upon farm crops. * * * Threshing is as necessary in order that the farmer may consume or market the crop as is sowing or harvest.” Hence the Minnesota court holds that “an employee of one who owns a steam thresher and threshes grain for farmers under contract, is, while employed about the threshing machine in the course of threshing grain upon a farm, a ‘farm laborer.”’ In any event, it must be clear the employee in that case was employed in agriculture. If a farmer threshes his own grain and employs men for that purpose, these men are employed in agriculture. They are engaged in harvesting crops. The crops are not fully harvested until they are ready for the farmer's market. The fact the farmer may thresh for a neighbor or engage in what is called “commercial threshing” does not alter the work his employees are doing. They are harvesting crops even if doing it under special contract. Hence that the thresher in that case was what is known as a “commercial thresher,” or one doing the threshing under an independent contract is immaterial, all are employed in the business, profession, or pursuit known as agriculture, and the policy of the law is to exclude such from the benefits of the law.

Section 1 of the Workmen's Compensation Act clearly intends to furnish relief for all workmen engaged in hazardous employments, and were it not for the exemption, those employed in agriculture would be covered. The exception is to be construed strictly; but even with this in mind, it must be clear that the man who plows a field and sows a crop is engaged in agriculture whether he does it for himself, or as an employee of the owner, or on an independent contract. See Sylcord v. Horn, 179 Iowa, 936, 162 N.W. 249, 253, 7 A.L.R. 1285.

The Texas court of Commission of Appeals in Hill v. Georgia Casualty Co., 45 S.W.(2d) 566, 567, goes so far as to hold that a nursery laborer is a laborer engaged in agriculture, as “one engaged in the nursery business is engaged in an agricultural pursuit.”

Our construction is well sustained by authority. The Workmen's Compensation Act of Idaho excepts “agricultural pursuits” from the provisions of its law, and in Cook v. Massey, 38 Idaho, 264, 220 P. 1088, 35 A.L.R. 200, it is held that the operation of a commercial threshing machine outfit for the purpose of threshing grain is an agricultural pursuit. The decision is exhaustive and well considered. See, also, Sylcord v. Horn, supra, where an employee of the...