                                     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:      June 20, 1973

                                                 Decided :     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 super-
visory 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 inade-
quate 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 sec-
            t 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 house-
            hold 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--assump-
            t 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 occu-
          pations 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 poss-
ible 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 em-
ployees i s injured.     The custom combiner i s not employed in farming.          H is
                                                                                    e
harvesting a crop which he did not r a i s e , nor own.      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 Compen-
sation 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 be-
           tween 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 simul-
taneously 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.        This injury was incurred independently from
any farming operation.      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
