### No. 81477 INTHE SUPREME COURT OF THE STATE OF 

### MONTANA 1982

STANLEYL. CELMER, Plaintiff and Appellant,

VS. 

### LLOYD SCHMITTd/b/a STANFORDMEATS, Defendantand Respondent.

Appeal from: District Court of the Tenth JudicialDistrict, In and for the County of JudithBasin HonorableLeRoy L. McKinnon, Judgepresiding. Counsel of Record: ForAppellant: Craig R. 

### Buehler,Mt. 

### Legal Services,Lewistown,

Montana For Respondent: Lloyd Schmitt,Pro Se,Stanford,Montana

Submitted onbriefs: March 25, 1982 Decided:May 20, 1982 Filed:

## MAY

## 201982Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal 

### arises from a ruling by the District Court of the Tenth Judicial District of the State of Montana, in and for the County of Judith Basin, disallowing StanleyCelmer's wage claim against Lloyd Schmitt

# . Celmer's motion for

### a new 

### trial and motion toamend thejudgment 

### were denied, and thisappeal followed. Celmer

### washired by Schmitt at a salaryof $1,000 per month to learn 

### meat cutting and tomanage the meat cutting operation of Schmitt

## 's agricultural business. Schmitt also provided Celmer with a house, rent free, and a $50 per month meat allowance, which was later increased to $55 per month. The rental value of the house 

### was determined tobe $225 per month. The Schmitt business is an integrated livestock, grain and meat production enterprise, and has been classified 

### as an agriculturalenterprise by both the United States Department of Labor and the State of Montana Department of Labor and Industry. As an agricultural laborer, Celmer 

### was hired to work up 

### to ten hours a day for usually five and one-half days a week. He was advised prior to employment thathe would be an agriculturalworker, towhich he agreed. Celmer worked for Schmitt from April 9, 1980, until the morning of December 10, 1980. When he quit, he did not provide any notice to Schmitt. According to 

### Celmer

## 's records, he worked 135hours of overtime during his employment with Schmitt and was not compensated forthem. Celmer presents several issues for review; however, there is but one substantial issue: Did Schmitt fail to fully compensate 

### Celmerduring the course of hisemployment?The District Court concluded that. the contract of employment excluded overtime payments because Celmer 

### was compensated by salary and allowance for rent and meat. Therefore, the court ruled there 

### was a failure on Celmer's part

### toprove that any wages were due. We have reviewed the record and find that there is sufficient credible evidence to support the findings and conclusions of the District Court. Jensen v. Jensen (1981), Mont.. 

## , 629 P.2d 765, 38 St.Rep. 927. - Celmer's contention that he 

### was not. an agricultural worker asdefined by Plouffe v. Farm and Ranch Equipment Co. (1977), 174 Mont. 313, 570 P.2d 1106, and is thereby deserving of overtime wages pursuant. to 

### section 39-3-405, MCA, is wit-hout

### merit. The record reveals he 

### was hired wit-h the understanding he would be an agricultural employee and would have to perform any function required of him from Schmitt's livestock, grain and meat production enterprise. Further, Plouffe dealt with an individual who 

### was working as a mechanic servicing farm equipment. There is a dist-inction in the 

### law between these t.wo. It has been generally held that service type of work 

### is excluded from the agricultural exception while meat cutting and related livestockwork is not. 56 C.J.S. Master and Servant, 

### 5 151. In any event, an employee would be estopped from claiming compensation for overtime work where he failed to report it

or to inform his employer that he expected compensation for it until he instituted suit after hisdischarge. Herman v. Golden Arrow Dairy (1937), 191Wash. 927, 71 P.2d 581. The judgment of the DistrictCourt is affirmed.

### We concur: