State ex rel. Romero v. District Court of Eighth Judicial Dist. In and For Cascade County, 12524

• Decision Date: 13 July 1973
• Docket Number: No. 12524,12524
• Citation: 162 Mont. 358,513 P.2d 265
• Parties: STATE of Montana ex rel. Clayton V. ROMERO, Petitioner, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF CASCADE, et al., Defendants.
• Court: Montana Supreme Court

Page 265

513 P.2d 265

162 Mont. 358

STATE of Montana ex rel. Clayton V. ROMERO, Petitioner, v. DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF CASCADE, et al., Defendants.

No. 12524.

Supreme Court of Montana.

Submitted June 20, 1973.

Decided July 13, 1973.

Hoyt, Bottomly & Gabriel, Great Falls, R. V. Bottomly argued, Great Falls, for petitioner.

Cure & Borer, Great Falls, Orin R. Cure argued, Great Falls, for defendants.

JAMES T. HARRISON, Chief Justice.

This is an original proceeding brought on the relation of Clayton V. Romero seeking a writ of supervisory control directed to the respondents. After an ex parte hearing on June 4, 1973, we issued an order to show cause setting a hearing for June 20, 1973, to determine whether a writ of supervisory control or other appropriate writ should be issued.

Petitioner's ground for seeking relief is that the district court made a mistake of law which, if allowed to stand, would inflict a gross injustice upon petitioner. Petitioner alleges that he would be compelled to proceed to trial based upon his complaint, and the respondent Jimmie R. McBride would have available to him the defenses of assumption of risk and contributory negligence as contained in respondent's answer. Petitioner further states that his remedy by appeal after final judgment is wholly inadequate and such a remedy would be tantamount to a denial of justice.

The district court action arose out of an accident which occurred on a dryland wheat farm in Liberty County, Montana on or about August 21, 1969. Petitioner, Clayton V. Romero, was employed by the respondent Jimmie R. McBride in a custom combining operation. That is, McBride would contract with various farmers to combine some or all of their wheat. In this particular case, the farmer involved had several combines of his own working and simply hired McBride to combine certain acreage and haul the grain to an on-the-farm granary where it was to be stored. Romero had been employed by McBride in the State of Oklahoma and had been working for McBride for over a month. His job at the time was to haul grain in one of McBride's trucks to a granary where he would dump the grain into the hopper of a grain auger. The grain auger was powered by a tractor and elevated the grain out of the hopper into the granary. Romero was seriously injured when his left hand was caught in the unguarded grain auger. McBride did not carry Workmen's Compensation insurance either in the State of Oklahoma or the State of Montana.

The issue presented to this Court is whether or not an employee of a custom combiner is excluded from recovery as being an agricultural employee, under the Montana Workmen's Compensation Act.

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

'Defenses not excluded in personal injury action against employer in nonhazardous 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 farming, 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 casual nature.'

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

'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.'

This Court finds that the legislature in 1915, at the time of the passage of the Workmen's Compensation Act, intended to include in the exclusion of section 92-202, R.C.M.1947, the normal activities and operation of the farm or ranch by the owner and his employees as well as exchange of work and labor in other casual farm related activities. We believe that the legislature did not intend to include custom combining. Custom combining is a business requiring large sums to be invested in combines, trucks, trailers and allied machinery. This custom combiner started his season in early spring in the south and proceeded north through the midwest and on to the site of this accident. Nothing in this work is associated with the custom combiner's own farm operation.

We hold that custom combining is a hazardous business operation and as such the employer is required to carry Workmen's Compensation and in the absence of such coverage, the employer loses all common law...