Morel v. Thompson

• Decision Date: 30 January 1975
• Docket Number: No. 9057,9057
• Citation: 225 N.W.2d 584
• Court: North Dakota Supreme Court
• Parties: Edward F. MOREL, Plaintiff and Appellee, v. Bronald THOMPSON, et al., Defendants and Appellants. Civ.

Page 584

225 N.W.2d 584

Edward F. MOREL, Plaintiff and Appellee, v. Bronald THOMPSON, et al., Defendants and Appellants.

Civ. No. 9057.

Supreme Court of North Dakota.

Jan. 30, 1975.

Syllabus by the Court

1. A Workmen's Compensation statute is to be construed liberally and reasonably with the view of extending its beneficent provisions to all who can be fairly

brought within them; and the rule applies in determining whether one is within the agricultural exemption from the statute.

2. For reasons stated in the opinion, it is held that the employer in the instant case was not exempt from the provisions of the Workmen's Compensation Act.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellee.

William G. Heth, Dickinson, for defendant and appellant, Edward Fetch.

David L. Evans, Workmen's Compensation Bureau, and Leonell W. Fraase, Sp. Asst. Atty. Gen., Bismarck, for defendant and appellant, North Dakota Workmen's Compensation Bureau.

ERICKSTAD, Chief Justice.

The issue in this case is whether Edward Fetch, doing business as Ed's Honey Company, was exempt as an employer from complying with the Workmen's Compensation statutes of the State.

On April 13, 1972, Edward F. Morel, while employed by Edward Fetch, doing business as Ed's Honey Company, suffered injury to his right hand when it was caught in the blades of a radial arm power saw. At that time both Morel and Fetch were engaged in sawing lumber to be used in conjunction with the construction of beehives. The accident occurred in a warehouse which Mr. Fetch rented on property formerly used by the Job Corps approximately three miles northeast of Dickinson.

At the Workmen's Compensation hearing, Fetch testified that he had been in the honey business for six years on his own and that prior thereto, he had been employed by the Woodworth Honey Company of Dickinson. He purchased approximately one thousand beehives at $9.50 per hive in January 1972 to be delivered in May of 1972. The beehives were placed in alfalfa and clover fields in the Dickinson area under arrangements with the farmers whereby the farmers would either receive cash or honey in exchange for the privilege of leaving the beehives on their land during the summer. (It is apparently the usual practice to take the bees south into Texas or to a warmer climate during the winter to avoid their death in the cold weather.) Under this arrangement, the farmer had a double benefit in that the farmer acquired a better pollinization of his alfalfa and clover and at the same time secured either honey or cash for permitting the beehives to be placed in his fields.

The honey was collected in the summer and fall and then heated slightly so that it could be liquefied and strained. It was then poured either in fifty-five gallon containers for shipment to large packing companies where it is filtered and clarified or it was poured into smaller containers for sale as raw honey in stores in Dickinson and Beulah and in towns between Dickinson and Beulah. Some honey was stored in the warehouse to supply the small-town stores in the nonproducing season and also honey was stored to feed the bees. Morel was involved in most of these activities during his various periods of employment by Fetch.

After the hearing the Bureau simply found that the keeping of bees and the collecting and selling of honey is an agricultural service and, accordingly, denied Morel's claim under § 65--01--02(4)(a)(1) inasmuch as Fetch had not elected to secure Workmen's Compensation Insurance under § 65--04--29 of the North Dakota Century Code.

Pertinent are the following statutes:

'65--01--05. Employment of those unprotected by insurance unlawful--Effect of failure to secure compensation--Penalty--Injunction.--It shall be unlawful for any person, firm, or corporation to employ anyone, or to receive the fruits of the labor of any person, in a hazardous employment as defined in this title, without first making application for workmen's compensation insurance coverage for the protection of such employees by notice to the bureau of the intended employment the nature thereof and the estimated payroll expenditure for the coming twelve month period. * * * ' N.D.C.C.

'65--01--02. Definitions.--Whenever used in this title:

'4. a. 'Hazardous employment' shall mean any employment in which one or more employees are employed regularly in the same business or in or about the establishment except:

'(1) Agricultural or domestic service; or' N.D.C.C.

'65--04--29. Employers carrying on nonhazardous employment may come under law--Employee's option.--Any employer carrying on any employment not classed as hazardous under the definition of that term contained in section 65--01--02 who complies with the provisions of this title and who shall pay into the fund the premiums provided for under this chapter shall be covered under the fund and shall not be liable to respond in damages at common law or by statute for injuries to or the death of any employee, wherever occurring, during the period covered by such premiums. * * * ' N.D.C.C.

On appeal to the district court, the judgment of the Workmen's Compensation Bureau dismissing Morel's claim was reversed. It is from the judgment of district court entered on June 7, 1974, that both the Workmen's Compensation Bureau and the employer, Mr. Fetch, appeal.

Notwithstanding that it is the findings of fact of the Bureau that we must sustain if supported by substantial evidence rather than the findings of fact of the trial court, we believe that since the facts are not disputed and the findings of the Bureau are so limited, the trial court's analysis of the facts as contained in its memorandum opinion is pertinent.

'In my opinion Ed's Honey is primarily a commercial operation and enterprise. The hives are put out on farm land in the spring and gathered in the fall. But there is much more going on for months in the building where the honey is processed. Many hives are constructed, the honey is taken out of the combs, it is filtered, heated, packaged and stored. It is sold and delivered. The bees are taken south for the winter.'

The trial court stated that it was influenced in concluding that the activity was commercial rather than agricultural by an older decision of this court; to wit, Unemployment Compensation Division of Workmen's Compensation Bureau v. Valker's Greenhouses, Inc., 70 N.D. 515, 296 N.W. 143 (1941).

In Valker's, the issue was whether persons employed in conjunction with the operation of a greenhouse were employed in agricultural labor under the then existing Unemployment Compensation Act.

In attempting to determine this issue Justice Morris, writing for the Court, utilized the dictionary and found it of little help.

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