State ex rel. Hammond v. Hager, 12363

Decision Date30 November 1972
Docket NumberNo. 12363,12363
Citation160 Mont. 391,503 P.2d 52,29 St.Rep. 945
PartiesThe STATE of Montana ex rel. Earl H. HAMMOND, Petitioner, v. Ramaldus G. HAGER et al., Defendants.
CourtMontana Supreme Court

Hoyt, Bottomly & Gabriel, Great Falls, John C. Hoyt (argued), Great Falls, for petitioner.

Jardine, Stephenson, Blewet & Weaver, Great Falls, L. Morris Ormseth (argued), Great Falls, for defendants.

JAMES T. HARRISON, Chief Justice.

This is an original proceeding involving the civil action of Earl H. Hammond, plaintiff, v. Ramaldus G. Hager and Magelin Hager, defendants, filed in the district court of Teton County. Here petitioner, Earl H. Hammond, seeks an appropriate writ directed to defendants Hager, the district court and the judge thereof to correct an alleged erroneous ruling by the district court.

It appears from the complaint in the district court action that Hammond was employed by the Hagers on their ranch as a ranchhand, and his duties included irrigation; that on the day of his injury he was supplied with a Honda motorcycle for transportation instead of the usual car or pickup. He alleges he was unfamiliar with the operation of the motorcycle and in such operation he was thrown from the Honda and sustained injuries for which he seeks damages.

The Hagers by answer, plead the defenses of assumption of risk and contributory negligence. Thereafter, Hammond amended his complaint by adding a new count setting forth that Hammond was engaged in a hazardous occupation while employed by the Hagers who did not carry industrial accident insurance or elect to come under the Workmen's Compensation Act. Thereafter Hammond moved the district court to dismiss and strike from the Hagers' answer their defenses that petitioner assumed the risk and was guilty of negligence (not willful) which contributed to his injuries.

At a basis for this motion Hammond contended the statutes of Montana require that all persons engaged in hazardous occupations must carry industrial accident insurance, and failure to do so excludes as defenses in a personal injury action the negligence of the employee and his assumption of risk; but admittedly those statutes exclude employers engaged in farming and stock raising. Hammond contends that such exclusion is not a legitimate classification; that it is arbitrary and unreasonable; and in violation of the 14th Amendment to the United States Constitution.

The district court overruled the motion to dismiss and strike the common law defenses. Hammond, then alleging that a remedy by appeal after final judgment would be wholly inadequate and the denial of a speedy remedy would be tantamount to a denial of justice, applied to this Court for an appropriate writ to overturn the district court's order. Counsel was heard ex parte and an alternative order to show cause was issued.

Defendants filed their answer and return. They alleged that even if petitioner's constitutional contentions were correct, we could not include farming within the Workmen's Compensation Act when the legislature excluded it and could only declare the entire act invalid and, further, they assert that the legislative classification is valid.

On the return day, counsel for all parties appeared by brief and in oral argument.

Since this proceeding involves provisions of Montana's Workmen's Compensation Act, we quote the statutes of that Act involved:

Section 92-201, R.C.M.1947:

'Defenses excluded in personal injury action-negligence of employee-fellow servant-assumption of risk. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:

'(1) That the employee was negligent, unless such negligence was willful;

'(2) That the injury was caused by the negligence of a fellow employee;

'(3) That the employee had assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances.'

Section 92-202, R.C.M.1947:

'Defenses not excluded in personal injury action against employer in non-hazardous occupation and certain other occupations. The provisions of section 92-201 shall not apply to actions to recover damages for personal injuries sustained by household and domestic servants or those employed in famring, dairying, agricultural, viticultural, and horticultural, stock or poultry raising, or engaged in the operation and maintenance of steam railroads conducting interstate commerce, or persons whose employment is of a causal nature.'

Section 92-301, R.C.M.1947:

'Act applies to all inherently hazardous occupations as enumerated. This act is intended to apply to all inherently hazardous works and occupations within this state, and it is the intention to embrace all thereof in the four following sections, and the works and occupations enumerated in said sections are hereby declared to be hazardous, and any employer having any workmen engaged in any of the hazardous works or occupations herein listed shall be considered as an employer engaged in hazardous works and occupations as to all his employees.'

Sections 92-302, 92-303, 92-304 and 92-305 enumerate the occupations which are expressly declared to be hazardous.

Section 92-306, R.C.M.1947:

'Hazardous occupations not enumerated or hereafter arising. If there be or arise any hazardous occupation or work other than hereinbefore enumerated, it shall come under this act and its terms, conditions, and provisions as fully and completely as if hereinbefore enumerated. The enumeration of certain works and occupations as hazardous shall not exclude from the provisions of this act any other occupation actually hazardous, whether enumerated or not. All other works and occupations hazardous in their nature shall be included within the terms of this act. No employement or occupation shall be excluded from the benefits of this act as a hazardous occupation because it is not of the same class as other occupations described as hazardous in this statute.'

Petitioner states that the issue here is whether or not the exemption of employees of those engaged in farming, agriculture or stock raising is an arbitrary and unreasonable one. Admitted by petitioner is the fact that the only authority is to the effect that the exclusion of farm laborers from the Workmen's Compensation Act coverage is not an arbitrary classification. The United States Supreme Court considered this exclusion in Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527. In its opinion, the court stated that in excluding farm laborers the legislature might consider that the risks inherent in those occupations were specially patent, simple, and familiar. Middleton cited and relied upon the authority of New York Central Ry. Co. v. White, 243 U.S. 188, 208, 37 S.Ct. 247, 254, 61 L.Ed. 667, 677, which involved an employee of a railroad, and in its opinion the Court there stated:

'The objection under the 'equal protection' clause is not pressed. The only apparent basis for it is in the exclusion of farm laborers and domestic servants from the scheme. But, manifestly, this cannot be judicially declared to be an arbitrary classification, since it reasonably may be considered that the risks inherent in these occupations are exceptionally patent, simple and familiar.' (Emphasis supplied.)

Petitioner contends that White never considered the issues here presented headon, but only obliquely, and used the terms 'patent, simple and familiar' as the basis for justifying the exclusion of farm and ranch employees from coverage, and then asserts that this Court should decide whether or not farm and ranch work in Montana today is 'patent, simple and familiar' and thus distinguishable from other industrial employments, and secondly, is farm and ranch work in fact hazardous?

However, before we enter into any discussion of these contentions, we note that petitioner is aware of the rule, appropriate here, and stated in Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed. 590, 593:

'Since the members of a legislature necessarily enjoy a familiarity with local conditions which this court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.'

It is well to bear in mind what this Court stated back in 1919 in Shea v. North-Butte Min. Co., 55 Mont. 522, 528, 179 P. 499, 501, with reference to the then new Workmen's Compensation Act. Mr. Chief Justice Btantly, speaking for a unanimous court, stated:

'The causes, from a historical point of view, impelling the enactment of Workmen's Compensation Laws, and the object to be served by them, have heretofore been stated somewhat at length by this court. Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554; Lewis & Clark County v. Industrial Accident Board, 52 Mont. 6, 155 Pac. 268, L.R.A.1916D, 628. It is not necessary to restate them. It is sufficient for present purposes to call to mind that the object sought was to substitute for the imperfect and economically wasteful common-law system by private action by the injured employe for damages for negligent fault on the part of the employer, which, while attended with great delay and waste, compensated those employe § only who were able to establish the proximate connection between the fault and the injury, a system by which every employ in a hazardous industry might receive compensation for any injury suffered by him arising out of and during the course of the employment, whether the employer...

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