Westfall v. Tilley

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; FORT
• Citation: Westfall v. Tilley, 476 P.2d 797, 4 Or.App. 9 (Or. App. 1970)
• Decision Date: 16 November 1970
• Parties: In the Matter of the Compensation of Burlin C. Westfall, Claimant. Burlin O. WESTFALL, Appellant, v. Glen H. TILLEY, Respondent.

Page 797

476 P.2d 797

4 Or.App. 9

In the Matter of the Compensation of Burlin C. Westfall, Claimant Burlin O. WESTFALL, Appellant, v. Glen H. TILLEY, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Sept. 21, 1970.

Decided Nov. 16, 1970.

Richard T. Kropp, Albany, argued the cause for appellant. With him on the brief were Emmons, Kyle & Kropp, Albany.

Clifford A. Allison, Stayton, argued the cause for respondent. On the brief were Murley M. Larimer and Gehlen & Larimer, Stayton.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Claimant filed for an on-the-job injury allegedly suffered in covered employment. The hearing officer, both after the original hearing and a rehearing held pursuant to order of the Workmen's Compensation Board, ruled that he was a covered employe under the Workmen's Compensation Act. The Workmen's Compensation Board on review held that claimant's employer was a farmer with respect to all his activities within the meaning of the Workmen's Compensation Act and that, therefore, the work claimant was doing when injured was incidental to farming. Accordingly it rejected the claim. On appeal therefrom the circuit court affirmed the order of the board. Claimant appeals.

The employer-respondent in 1967, the year of the alleged injury, owned and operated Tilley Farm Service, a custom soil fumigating and weed spraying business. Mr. Tilley, who was licensed as a fumigator by the Oregon State Department of Agriculture, started this business in 1965. The business name, Tilley Farm Service, was carried on his fumigating and spraying equipment, and it was so listed in the Albany telephone directory. In addition, the Salem Capital Press, the Santiam Soil and Water Conservation District and the Linn Soil and Water Conservation District newspapers were used to advertise the respondent's fumigating and spraying business.

In 1967, Tilley Farm Service performed custom work on contracts covering about 4,000 acres for approximately 50 farmers, 95 per cent of whom lived within a tenmile radius of Jefferson, Oregon. Within this geographical area respondent had a virtual monopoly of the work. However, Tilley Farm Service on occasion did custom work throughout the Willamette Valley. In that year it applied approximately $50,000 worth of chemical, netted $6,000, and had at least $20,000 invested in equipment for its special needs alone. Two-way radio installations were installed in all Tilley Farm Service vehicles.

In addition to the respondent's soil fumigation and spraying business, he owned 52 acres of farm land. Forty-four acres were rented out in the year in question. He used the remaining eight acres to grow lily bulbs. The net proceeds realized from the lily bulb operation were divided equally between Mr. Tilley and his father, from whom he was buying that land. The respondent and his father also farmed approximately 250 acres owned by the father. Although the father farmed under the name of Tilley and Son, the respondent did not share in the proceeds from his father's farming operation on a partnership basis but was paid a salary.

Thus respondent, Glen Tilley, was involved in three business operations functioning simultaneously: his soil fumigating and spraying business, the joint bulb farm operation, and his salaried work on his father's farm. Six thousand dollars of respondent's $12,000 net income for 1967 resulted from the Tilley Farm Service business, while the remaining $6,000 resulted from the respondent's other farming activities, including the work he did for his father on the latter's farm, and the lily bulb farming.

The employes hired by the respondent worked in the lily bulb operations and in the soil fumigating and spraying business. On occasion they also worked on his father's farm. Thus an employe of the respondent was in fact shared in three different areas of services: the lily bulb production, his father's general farming operations, and Tilley Farm Service, his own wholly owned soil fumigating and spraying business. Over a year's period respondent's employes spent approximately 50 per cent of their employment time working for Tilley Farm Service, and the remaining 50 per cent was divided between respondent's bulb operation and the farming operation conducted by Roy Tilley, respondent's father. Glen Tilley testified the four employes were, if anything, doing more custom work than they were farming.

In 1967, the claimant was referred to Tilley Farm Service by the Oregon State Employment office in Albany because Tilley Farm Service needed a man who could drive a tractor and fumigate. He was hired at $1.50 per hour. Claimant worked in the lily bulb fields his first day and the following day. On his third day, Tilley Farm Service began custom soil fumigation and spraying services on contract for two ranchers north of Salem. Claimant and Glen Tilley actually did the work. They worked straight through and did not finish the job until 3 a.m. of the fourth day. We note this work was done many miles from respondent's farm. The appellant did not work the rest of that day and reported back to Glen Tilley at his bulb farm on the next day.

After he had worked there for about an hour and a half, Glen Tilley instructed him to go over to the building where the farm and fumigating equipment were stored and repaired. This building, known as the old flax mill, served as headquarters for Tilley Farm Service, being used as its mailing address and telephone listing. The respondent instructed the claimant to remove from the bed of the truck the empty fumigant drums left over from the job Tilley Farm Service had finished on the prior day. To do so he had to shift two unused drums remaining from that job. After that he was supposed to pick up 14 drums of chemicals normally used in the Tilley Farm Service business from a business house in Hubbard. Seven of those full drums were in fact subsequently used on a Tilley Farm Service custom job and the other seven on Mr. Tilley's own farming operations. While so engaged, and before the unloading of the truck was completed, claimant sustained the injury which gave rise to this claim.

It is conceded that claimant was injured in the course of his employment in October 1967, which was in the period during 1967 when the 1965 Workmen's Compensation Act was not applicable to farming. Brennan v. Schmidt Bros. Farms, Or.App., 90 Adv.Sh. 1739, 471 P.2d 819 (1970), therefore, does not apply here. This claim is governed by the former Act.

ORS 656.090, then in force, declared that 'Farming, and all work incidental thereto, is a nonhazardous occupation.' A workman employed in activity defined as farming by that section was not covered for injuries sustained in such work. The question thus presented is whether claimant was engaged at the time of his injury in the then nonhazardous occupation of farming. It is conceded that if he was so engaged, he is not covered; otherwise he is. It is clear from the evidence that claimant was working in the business of Tilley Farm Service at the time of his injury. The hearing officer so found. We agree. The board concluded that the work of Tilley Farm Service was an activity incidental to farming and that Glen Tilley, the employer, was therefore engaged 'in only one occupation'--farming. Babb v. Lewis, 244 Or. 537, 419 P.2d 423 (1966); Beswick v. S.I.A.C., 248 Or. 456, 435 P.2d 461 (1967).

Babb v. Lewis, supra, was a case involving a tavern employe cut while preparing food served as an incidental part of the tavern business, itself an exempt occupation. The court there pointed out:

'The employer's occupation governs the status of the employee, Butler v. State Industrial Accident Com., 212 Or. 330, 318 P.2d 303, and services rendered which are considered as an incidental part of the employer's primary occupation are insufficient to enlarge his general occupation, Manning v. State Industrial Accident Com., 234 Or. 207, 380 P.2d 989.' 244 Or. at 540, 419 P.2d at 425.

In Beswick v. S.I.A.C., supra, a case involving the pilot of a commercial aircraft, then an exempt occupation, killed while flying a paying passenger on a fire observation mission, the court said:

'* * * As far as the purposes of the statute were concerned, the business of the passenger did not substantially change the business of the pilot. Neither the pilot nor the employer was engaged in the business or occupation of fighting fire.' 248 Or. at 459, 435 P.2d at 462.

Respondent urges the rule of these cases is controlling here. We disagree. Here the employer was engaged in two entirely separate businesses: one, farming, conducted on his own lily bulb farm; the other a custom service business conducted on a contract basis for a large number of customers on their land which might be located anywhere in the Willamette Valley.

In Raney v. State Industrial Acc. Comm., 85 Or. 199, 166 P. 523 (1917), the court early recognized that a farmer could even on his own land be engaged in more than one activity, one of which was deemed hazardous, and the other not. The court said:

'* * * Where, however, a person engaged in farming operates for himself or others any machine or agency that the statute...