STATE EX REL ROMERO v DIST COURT
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No. 12524 I N THE SUPREME C U T O T E STATE O M N A A OR F H F OTN STATE O M N A A ex r e 1 C A T N V. ROMERO, F OTN L YO Petitioner, DISTRICT COURT O THE EIGHTH JUDICIAL F DISTRICT O T E STATE O MONTANA, I N AND F H F FOR THE COUNTY O CASCADE-TRUMAN G. BRADFORD, F JUDGE THEREOF, and J I M M I E McBRIDE, Defendants. ORIGINAL PROCEEDING: Counsel of Record: For P e t i t i o n e r : Hoyt, Bottomly and G a b r i e l , Great F a l l s , Montana R. V . Bottomly argued, Great F a l l s , Montana For Defendants : Cure and Borer, Great F a l l s , Montana Orin R. Cure argued, Great F a l l s , Montana Submitted: Decided : June 20, 1973 13 1973 t4r. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court. This i s an original proceeding brought on t h e r e l a t i o n of Clayton V . Romero seeking a w r i t of supervisory control directed t o t h e respondents. After an ex parte hearing on June 4 , 1973, we issued an order t o show cause s e t t i n g a hearing f o r June 20, 1973, t o determine whether a writ of supervisory control or other appropriate writ should be issued. P e t i t i o n e r ' s ground f o r seeking r e l i e f i s t h a t the d i s t r i c t court made a mistake of law which, i f allowed t o stand, would i n f l i c t a gross i n j u s t i c e upon p e t i t i o n e r . Petitioner alleges t h a t he would be compelled t o proceed t o t r i a l based upon his complaint, and the respondent Jimmie R . McBride would have available t o him the defenses of assumption of r i s k and contributory negl igence a s contained i n respondent's answer. Petitioner fur- t h e r s t a t e s t h a t his remedy by appeal a f t e r f i n a l judgment i s wholly inadequate and such a remedy would be tantamount t o a denial of j u s t i c e . The d i s t r i c t court action arose out of an accident which occurred on a dryland wheat farm in Liberty County, Montana on o r about August 21, 1969. P e t i t i o n e r , Clayton V. Romero, was employed by the respondent Jimmie R . McBride in a custom combining operation. That i s , McBride would contract with various farmers t o combine some or a l l of t h e i r wheat. In t h i s partic- ular case, the farmer involved had several combines of h i s own working and simply hired McBride t o combine certain acreage and haul the grain t o an on-the-farm granary where i t was t o be stored. Romero had been employed by McBride in the S t a t e of Oklahoma and had been working f o r McBride f o r over a month. His job a t the time was t o haul grain in one of McBride's trucks t o a granary where he would dump the grain into the hopper of a grain auger. The grain auger was powered by a t r a c t o r and elevated the grain out of the hopper into the granary. Romero was seriously injured when his l e f t hand was caught i n the unguarded grain auger. McBride did not carry Workmen's Compensation insurance e i t h e r in the S t a t e of Oklahoma or t h e S t a t e of Montana. The issue presented t o t h i s Court i s whether or not an employee of a custom combiner i s excluded from recovery a s being an agricultural employee, under t h e Montana Workmen's Compensation Act. Section 92-202, R.C.M. 1947, s t a t e s : "Defenses not excluded i n personal injury action a s a i nst employer i n nonhazardous occupation and c e r t a i n other occupations. The provisions of sect i o n 92-201 shall n o t apply t o actions t o recover damages f o r personal i n j u r i e s sustained by household and domestic servants or those employed i n farming, dairying, agricultural , v i t i c u l t u r a l , and horticultural , stock o r poultry r a i s i n g , o r engaged i n the operation and maintenance of steam r a i 1roads conducting i n t e r s t a t e commerce, o r persons whose employment is of a casual nature." Section 92-201, R.C.M. 1947, s t a t e s : "Defenses excl uded i n personal i n jury action-negl iqence of empl oyee--fel low servant--assumpt i o n of risk. In an action t o recover damages f o r personal i n j u r i e s sustained by an employee i n the course of his employment, o r f o r death r e s u l t i n g from personal i n j u r i e s s o sustained, i t shall not be a defense: " (1 ) That the employee was negligent, unless such negl igence was w i 11ful ; "(2) That the injury was caused by t h e negligence of a fellow employee; " ( 3 ) That the employee had assumed the r i s k s inherent i n , incident t o , or a r i s i n g out of his employment, or a r i s i n g from the f a i l u r e of the employer t o provide and maintain a reasonably s a f e place t o work, or reasonably s a f e t o o l s o r appliances." This Court finds t h a t the l e g i s l a t u r e in 1915, a t t h e time of t h e passage of the Workmen's Compensation Act, intended t o include i n t h e exclu- sion of section 92-202, R.C.M. 1947, the normal a c t i v i t i e s and operation of the farm o r ranch by the owner and his employees as well as exchange of work and labor i n other casual farm related a c t i v i t i e s . W believe t h a t the e l e g i s l a t u r e did not intend t o include custom combining. Custom combining i s a business requiring large sums t o be invested i n combines, trucks, t r a i l e r s and a l l i e d machinery. T h i s custom combiner s t a r t e d his season i n e a r l y spring i n the south and proceeded north through the midwest and on t o the s i t e of this accident. Nothing i n t h i s work i s associated w i t h t h e custom combiner's own farm operation. W hold t h a t custom combining is a hazardous business operation and e as such the employer i s required t o carry Workmen's Compensation and in the absence of such coverage, the employer loses a l l common law defenses as provided by section 92-201 , R.C .M. 1947, hereinbefore quoted. The s t a t u t e applying to inherently hazardous occupations i s section 1947 92-301, R.C.M./i.'which s t a t e s : "Act applies to a l l inherently hazardous occupations as enumerated. This a c t i s intended to apply t o a l l inherently hazardous works and occupations within t h i s s t a t e , and i t i s the intention t o embrace a l l thereof in the four following sections, and the work and occupations enumerated in said sections are hereby declared to be hazardous, and any employer having workmen engaged in any of the hazardous works or occupations herein 1 i s ted s ha1 1 be considered as an employer engaged i n hazardous works and occupations as to a1 1 his employees." Sections 92-302, 92-303, 92-304, 92-305, and 92-306, R.C.M. 1947, enumerate many occupations which are specifically declared to be hazardous and conclude with the following: "If there be or a r i s e any hazardous occupation or work other than hereinbefore enumerated, i t shall come under t h i s act and i t s terms, conditions, and provisions as f u l l y and completely as i f hereinbefore enumerated." From these sections of the Revised Codes of Montana w hold t h a t e custom combining does come within the purview of the Workmen's Compensation Act. Workmen's Compensation laws, as with other social legislation, are t o be interpreted l i b e r a l l y in order t o provide as wide a coverage as i s possible t o the workers of t h i s State. Naturally, of course, t h i s liberal interpretation must f a l l within the bounds s e t by s t a t u t e s of our legislature. Section 92-202, R.C.M. 1947, hereinbefore quoted, specifically excludes: " *** personal injuries sustained by * * * those employed in farming, dairying, agricultural, v i t i c u l t u r a l , and horticultural, stock or poultry raising * * *It, In t h i s particular action, w have a custom combiner who indepently contracts e to cut a farmer's wheat, and in the course of t h i s operation one of his employees i s injured. The custom combiner i s not employed in farming. harvesting a crop which he did not r a i s e , nor own. H is e The custom combiner was merely providing a service t o the farmer who hired him. This i s the only issue to which t h i s Court addresses i t s e l f , i . e . , a custom combiner i s not excluded from the Workmen's Compensation laws on the ground that he i s engaged in agricultural employment. An extensive annotation on the appl ication of Workmen's Compensation Acts t o employees engaged i n farming appears i n 107 A.L.R. 977. Among the many cases therein discussed i s Nace v . Industrial Commission, 217 Wis. 267, 258 N.W. 781. In t h a t case the Wisconsin Supreme Court stated: " * * * Decisions of other courts in compensation cases are ordinarily not helpful because of differences between the language of the acts involved and our act. * * *" This observation i s certainly applicable here b u t w feel t h a t the better e reasoned authorities support our position. For example, one of the l a t e r cases i s that considered by the 4 0r.A. ;A8"3f? Oregon Supreme Court in Westfall v . Tilley,/476 P.2d 797, 801 (1970). That case involved a custom s o i l fumigating and weed spraying business and simultaneously the defendant conducted a bulb farm operation. The claimant was injured while unloading fumigating drums from the bed of a truck. The Court, in denying t h a t the work was excluded under t h e i r Workmen's Compensation Act stated: "In determining each case whether work done i s incidental to farming within the Act, the t e s t i s the particular farming a c t i v i t y engaged in by that workman's own employer, not whether the work may be considered incidental t o farming in general. * * *" In the case a t hand Romero was injured while in the employment of J i m i e McBride, the custom combiner. any farming operation. This injury was incurred independently from McBride was an independent contractor, and t o deny the petitioner, Romero, re1 ief would appear t o be improper. For this reason, the Court grants petitioner r e l i e f and d i r e c t s the d i s t r i c t court t o overrule the order denying the motion t o s t r i k e respondent's defenses of contributorv n e a l i a e n f i d as-tion of r i s k . 1
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