Plemmons v. Pevely Dairy Co.

• Court: Missouri Court of Appeals
• Writing for the Court: ANDERSON
• Citation: Plemmons v. Pevely Dairy Co., 233 S.W.2d 426, 241 Mo.App. 659 (Mo. App. 1950)
• Decision Date: 17 October 1950
• Docket Number: No. 27961,27961
• Parties: PLEMMONS et al. v. PEVELY DAIRY CO.

Page 426

233 S.W.2d 426

241 Mo.App. 659

PLEMMONS et al. v. PEVELY DAIRY CO.

No. 27961.

St. Louis Court of Appeals, Missouri.

Oct. 17, 1950.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 16, 1950.

Wm. H. Allen, David V. Campbell, St. Louis, for appellant.

H. O. Eldredge, Waynesville, Lawrence Presley, St. Louis, for respondents.

ANDERSON, Presiding Judge.

This is a proceeding instituted by Ruby Plemmons, Verenia Plemmons, and Selma Shelton, daughters of Otto Rowden, deceased, against the Pevely Dairy Company to recover compensation, under the Missouri Workmen's Compensation Act, Mo.R.S.A. Sec. 3689 et seq., as partial dependents of their father who, while in the employ of Pevely Dairy Company on that company's farm near Crescent, St. Louis County, Missouri, was gored and killed by a bull.

Two defenses were interposed. They were: '(1) that the employee was engaged in farm labor at the time of the fatal accident and is not within the beneficial coverage of the Act, by reason of Section 3693, R.S.Mo.1939, Mo.R.S.A., the applicable portion of which section reads:

"Sec. 3693. * * * Sections 3690, 3691 and 3692 of this chapter shall not apply to any of the following employments: * * *

"Second: Employments of farm labor and domestic servants including family chauffeurs', and, (2) that respondents were not dependents of deceased employee.'

The referee found in favor of the employer on the theory that the deceased employee at the time of his injury and death was employed in farm labor. On review, the Industrial Commission reversed the finding of the referee, and found: 'that Otto Rowden, deceased, was an employee of the Pevely Dairy Company within the provisions of the Workmen's Compensation Act; his work being incidental to an integral part of the industrial operation of the Pevely Dairy Company, and that he was not engaged in general farm labor as contemplated in Section 3693 of the Missouri Workmen's Compensation Law; and that Ruby Plemmons, Verenia Plemmons and Selma Shelton, daughters of the deceased, were all partial dependents of Otto Rowden on June 26, 1947, within the meaning of Section 3709(c).' An award was then entered in favor of claimants as partial dependents of the deceased employee. The Circuit Court affirmed the award of the Industrial Commission and, from this judgment of the Circuit Court, the employer has appealed.

The facts touching on the issue as to whether deceased was within the coverage of the Workmen's Compensation Act were admitted and embraced within a stipulation introduced in evidence. Said stipulation is as follows:

'Stipulation of Facts

'1. That employer is and was on June 26, 1947, a major employer engaged in the business of purchasing, producing, processing and pasteurizing milk, and producing and manufacturing milk products, and selling same at retail and wholesale to the public in the City and County of St. Louis, Missouri.

'2. That the employer owns a farm near Crescent in St. Louis County, Missouri, commonly known as the Pevely Farm; that this farm is used by employer for the purpose of maintaining, supporting, breeding, milking and care of a herd of about 150 milk cows, and the growing and raising of feed for said cows; that said cows are milked twice daily, and all milk thus derived after being pasteurized and bottled, is sold by the employer to the public as Grade A Milk or Pasteurized Milk.

'3. That employee on June 26, 1947, and for one year prior thereto was in the employ of employer at said Pevely Farm in the care and breeding of the cows on the farm, particularly the care of the dry cows, care of such cows when calving, care of the calves, in barns and fields, the mixing of feed and the feeding of dry cows and calves. As soon as cows again freshened they were returned to the regular milk herd away from care of the deceased.

'4. That employee sustained an accident arising out of and in the course of his said employment on June 26, 1947, and died as result of injuries received in said accident on June 26, 1947, being at the time of said accident gored by a bull which was servicing a cow on said Pevely Farm.

'5. That neither the employer nor the employee had filed any rejection of the Missouri Workmen's Compensation Act prior to June 26, 1947.

'6. That Ruby May Plemmons, Verenia Plemmons and Selma Shelton were the only children of employee on June 26, 1947, and employee was a widower and a single man on that date.

'7. That employee's average weekly wage was $31.62.'

Appellant urges that the trial court erred in affirming the award of the Industrial Commission for the reason that the stipulated facts show, as a matter of law, that Rowden was employed in farm labor and, consequently, by the terms of Section 3693, R.S.Mo.1939, Mo.R.S.A. Sec. 3693, excluded from the beneficial coverage of the Workmen's Compensation Act.

We find no cases in Missouri in point, but a review of the cases from other states construing similar acts leads us to the conclusion that appellant's contention must be sustained. Those cases hold that it is the character of the work itself, and not the business of the employer, that is determinative. In the case at bar, Rowden was employed on a farm and it was stipulated that his duties were: 'the care and breeding of cows on the farm, particularly the care of dry cows, care of such cows when calving, care of the calves, in barns and fields, the mixing of feed, and the feeding of dry cows and calves.' Clearly, these duties were those of farm labor.

We will not pursue the matter further except to briefly review the cases from other jurisdictions which we believe correctly announce the principles applicable here.

In Beyer v. Decker et al., 159 Md. 289, 150 A. 804, the employer owned and operated farms with an aggregate of about 500 acres on which he carried on a dairy business. He also raised corn, wheat, oats, etc. He kept about 30 cows, and some young stock. He had a milk route on which he delivered 400 or more bottles daily, and any surplus milk from the farm he delivered to a wholesaler who transported it to Philadelphia. Claimant was regularly employed in dairy work and drove a horse and wagon delivering surplus milk at the stations, to the wholesaler. His duties did not include any work on the farm crops. He regularly started in the morning milking the cows and seeking that the surplus milk was delivered to the stations, hauled out manure, threw down feed, took care of his horse and wagon, washed out bottles and cans, drove back and forth, and 'did anything that had to be done around' in connection with dairy farming. At times he would be put to other work to occupy his time. Claimant suffered an injury arising out of and in the course of his employment. The Maryland Act excluded from its coverage employees 'engaged in rendering any agricultural service, * * * (or) in service incidental to and in connection with agriculatural pursuits or developments'. Code 1924, Act 101, Sec. 65. It was held that claimant was not entitled to compensation. The court said: 'It may be that there are dairying operations now carried on upon such a scale, or under such circumstances, that they could not properly be classified as agricultural, but it is true that dairying operations are still carried on by many farmers as parts of general agricultural occupations. Ordinary farms, in other words, have long supplied milk, and many farmers still do so, as ordinary parts of their farming. And of course there is on every farm some work of delivering or shipping the products. In our opinion the statutory exception was intended to include work of dairying of the kind long familiar as an incident of ordinary farming. And the mere facts that the claimant was working in connection with a dairy, and delivering the wholesale milk, do not therefore remove him from the excepted class of farm laborers. The statute does not afford a precise definition of an agricultural laborer, or an exact indication of the point where dairying may cease to be part of a farming operation and become a commercial occupation. The courts are required to construe the statute with respect to the work done in each case. In this case, the employee's work appears to have been such as has been an incident of ordinary farming operations for a long time in the past, and we concur with the trial court in the conclusion that he was within the excepted class, and so not entitled to compensation under the provisions of the act.' Beyer v. Decker et al., 159 Md. 289, 150 A. 804, 805-806.

In Shafer v. Parke, Davis & Co., 192 Mich. 577, 159 N.W. 304, the employer, Parke, Davis & Co., was a corporation engaged in the manufacture and selling of chemicals and pharmaceuticals. It owned a farm where it raised hay, wheat, rye, and other farm products, but its principal use was in connection with the company's laboratory in Detroit. Large numbers of guinea pigs were kept upon the farm for experimental purposes, together with other animals, including some 200 horses, or more, and the principal product of the farm was serum for the Detroit office. Hay and such other products as were adapted to the purpose was used on the farm for feeding the animals, but the wheat and rye and products that could not be so used were sold. Claimant was employed generally on the farm caring for the horses and stables, and in the summer at general farm work, such as planting, tilling, and harvesting the crops. While feeding the horses he was kicked by one of them and presented his claim for compensation for the injury he received. The Michigan Act excludes farm laborers from the benefits. The Industrial Accident Board found that the employee was not a farm laborer. The Supreme Court reversed the Board's finding, and said: 'The growing of grass and grain and the raising and care of stock are the ordinary uses to which a farm is put, and the work of raising, tilling, and harvesting the grain and caring for...