Mundell v. Swedlund

• Decision Date: 24 May 1938
• Docket Number: 6461
• Citation: 59 Idaho 29,80 P.2d 13
• Parties: GLENN I. MUNDELL, Appellant, v. C. A. SWEDLUND, Respondent
• Court: Idaho Supreme Court

80 P.2d 13

59 Idaho 29

GLENN I. MUNDELL, Appellant, v. C. A. SWEDLUND, Respondent

No. 6461

Supreme Court of Idaho

May 24, 1938

WORKMEN'S COMPENSATION - INCLUDED EMPLOYMENTS-AGRICULTURAL PURSUIT-DETERMINATION OF NATURE OF EMPLOYMENT.

1. In determining whether an injured party was employed in an agricultural pursuit at time of accident, provisions of the Workmen's Compensation Law and proceedings under it must be liberally construed. (I. C. A., secs. 43-901 et seq 43-904, 44-301.)

2. Whether the grinding of hay subsequent to its completion as a finished farm product is an "agricultural pursuit" within meaning of the Workmen's Compensation Law depends on the facts. (I. C. A., sec. 43-904.)

3. An occupation or pursuit as a whole is the controlling factor in determining whether an employee is engaged as a farm laborer or in an "agricultural pursuit," within meaning of the Workmen's Compensation Law, rather than the immediate task being performed or the place of performance thereof. (I C. A., sec. 43-904.)

4. The kind of work ordinarily done on a farm is common knowledge.

5. Injury sustained by employee of hammer mill owner who was engaged commercially in grinding hay for others at a fixed price per ton was compensable although owner had not elected in writing to have the provisions of the Workmen's Compensation Law apply to the "agricultural pursuits" carried on by him, since such work was not an "agricultural pursuit," notwithstanding that operation of the hammer mill was allegedly comparable to the operation of a "threshing machine." (I. C. A., sec 43-904.)

APPEAL from Industrial Accident Board.

Direct appeal from an order of the Industrial Accident Board denying an award of compensation to appellant. Reversed and remanded with instructions to enter an award in favor of appellant.

Reversed and remanded with instructions.

E. B. Smith and Dale Clemons, for Appellant.

The occupation or pursuit of the employer, rather than the actual work being performed by the employee at the time of injury, is the true test to apply in determining whether the employee sustained injury in an agricultural pursuit. (I. C. A., sec. 43-904; Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960; Anderson v. Last Chance Ranch Co., 63 Utah 551, 228 P. 184; In re Boyer, 65 Ind.App. 408, 117 N.E. 507; Roush v. Heffelbower, 225 Mich. 664, 196 N.W. 185, 35 A. L. R. 196.)

A farm laborer's lien is granted only to a person "who does any labor on a farm or land in tilling the same, or in cultivating, harvesting, threshing, or housing any crop or crops raised thereon"; the statute does not include labor performed in processing hay or grain by milling or grinding it. (I. C. A., sec. 44-301; Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200.)

Justice to workmen is a fixed public policy in Idaho; fairness and generosity to those who labor requires liberality in determining their rights. Out of this just and generous public policy comes the rule that Idaho's Workmen's Compensation Law and cases under it are to be liberally interpreted. (Dorrell v. Norida Land & Timber Co., supra; I. C., art. 1, sec. 18; Riggen v. Perkins, 42 Idaho 391, at 401, 402, 246 P. 962; In re Larson, 48 Idaho 136, 279 P. 1087.)

Earl E. Garrity, for Respondent.

Hay grinding is an accepted employment.

"Employments not covered under the provisions of this action shall apply to (1) agricultural pursuits, . . . . " (Sec. 43-904, I. C. A.)

"Agricultural pursuits may therefor properly include every process and step taken necessary to the completion of a finished farm product." (Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200.)

A hay grinder is a modified threshing machine and comes under the category of farm implements (p. 11, Transcript). Uncontradicted. (Cook v. Massey, supra, and cases cited thereunder.)

Distinction between farm laborer and agricultural pursuit.

The Idaho statutes provide that agricultural pursuit and not farm labor is exempted employment. (Industrial Com. v. Shadowen, 68 Colo. 69, 187 P. 926, 13 A. L. R. 952.)

BUDGE, J. Ailshie and Givens, JJ., concur. Morgan, J., did not sit at the hearing nor participate in the opinion.

OPINION

BUDGE, J.

Glenn I. Mundell, appellant, employed by respondent Swedlund, while assisting in the work of commercially grinding hay for one Haynes, a customer of respondent, and more specifically while hammering a steel stake to which was attached a guy wire holding the derrick used in such operations, was struck in the right eye with a small piece of metal flying from the stake, the eyeball being pierced and entirely destroyed, removed by operation, and an artificial eye fitted. Respondent in his business ground hay commercially at an agreed price per ton with a hammer mill which was moved from place to place with a crew of men. Respondent was not a farmer, did not cultivate nor prepare the soil, plant the seeds, raise or harvest crops, nor rear, feed, or manage livestock and had nothing to do with tillage, husbandry or farming, but supervised his crews and machines for grinding during season, and attended a garage and service station business the balance of the time. The Industrial Accident Board found appellant was injured on account of a personal injury by accident arising out of and in the course of his employment by respondent, but denied an award of compensation to appellant, finding that at the time appellant sustained injury by accident, respondent had not elected in writing filed with the Industrial Accident Board, that the provisions of the Workmen's Compensation Law should apply to the agricultural pursuits carried on by him. This appeal was taken from the award of the board, denying compensation.

Appellant urges by his three assignments of error that the board erred in failing to enter an award in his favor for the benefits provided by the Workmen's Compensation Law. One question only is presented: Was respondent engaged in an agricultural pursuit within the meaning of section 43-904, I. C. A., providing:

"None of the provisions of this act shall apply to:

"1. Agricultural pursuits. . . .

"Unless prior to the accident for which the claim is made, the employer had elected in writing filed with the board, that the provisions of the act shall apply."

Respondent relies almost entirely upon Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200, urging that this court there settled the workmen's compensation laws and clarified the rules for determining cases containing questions such as here presented, determining "threshing" to be an agricultural pursuit.

Cook v. Massey, supra, does not appear to be analogous to, nor is it controlling in, the instant case. The case is bottomed upon the propositions that there is authority that an employee upon a threshing machine is following an agricultural pursuit, and that the legislature strongly indicated its intention to, and classified threshing as an agricultural pursuit by the express provisions of an amendment to section 44-301, I. C. A., providing:

"Any person who does any labor on a farm or land in tilling the same, or in cultivating, harvesting, threshing, or housing any crop or crops raised thereon, has a lien on such crop or crops for such labor. . . . "

In other words it was determined that the legislative intent had been indicated, and would be followed, that the occupation of threshing is an agricultural pursuit. In summarizing the case the following language appears in the opinion in Cook v. Massey, supra:

"As we have indicated above, this is a question solely of legislative intent, and since there is authority supporting the proposition that an employee upon a threshing machine is following an agricultural pursuit, and our own legislature has indicated very strongly that they have classified threshing as an agricultural pursuit, that indication will be followed." (Emphasis inserted.)

It does not appear that the milling or grinding of hay or the operation of a hammer mill for grinding is analogous to threshing, or that a hammer mill and a threshing machine are analogous or alike. In Cook v. Massey, supra, the following definition of a threshing machine is given:

" 'Threshing machine' is defined in 38 Cyc. 301 as follows: 'In agriculture, a stream, water, or horse power machine which in its most complete form beats the grain from the ears of cereals, separates the grain from the straw, and winnows it from the chaff.' "

The court further, in Cook v. Massey, supra, recognizes a distinction between "milling" and "threshing," saying:

" . . . . It is urged that milling and threshing are similar businesses and employments, both dealing with the product of the farm, and that milling is clearly not an agricultural employment. The fallacy of this reasoning is that grain is a farm or agricultural product, which flour, the product of the mill, is not." (Emphasis inserted.)

The definition of "grind" is given in Funk & Wagnall's Standard Dictionary, as follows:

"To reduce to fine particles or powder by crushing and friction; triturate; as, to grind wheat. To produce by trituration or by rotary motion like that of a mill; as, to grind meal;"

Dorrell v. Norida Land & Timber Co., 53 Idaho 793, 27 P.2d 960 is authority for the proposition that in determining whether the injured party was, or was not, employed in an agricultural pursuit, at the time of the accident, section 43-904, I. C. A., as well as the Workmen's Compensation Law, and all proceedings under it must be liberally construed with a view to effect the object of the law and to promote justice. (Flynn v. Carson, 42 Idaho 141, 152, 243 P. 818; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Hustead v. H. E. Brown Timber Co....