No. 12524 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA ex re1 CLAYTON V. ROMERO, 

Petitioner, 

DISTRICT COURT OF THE EIGHTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF CASCADE-TRUMAN G. BRADFORD, 

JUDGE THEREOF, and JIMMIE McBRIDE, 

Defendants. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

Hoyt, Bottomly and Gabriel, Great Falls, Montana 

R. V. Bottomly argued, Great Falls, Montana 

For Defendants : 

Cure and Borer, Great Falls, Montana 

Orin R. Cure argued, Great Falls, Montana 

Submitted: June 20, 1973 

Decided : 1 3 1973 
t4r. Chief Justice James T. Harrison delivered the Opinion of the Court. 

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 negl igence 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 

asai nst 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 

rai 1 roads conducting interstate commerce, or 

persons whose employment is of a casual nature." 

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

"Defenses excl uded in personal in jury action-- 

negl iqence of empl oyee--fel low 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 

negl igence was wi 11 ful ; 

"(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 defenses as 

provided by section 92-201 , R.C .M. 1947, hereinbefore quoted. 

The statute applying to inherently hazardous occupations is section 

1947 

92-301, R.C.M./i.'which states: 

"Act applies to all inherently hazardous occupations 

as enumerated. This act is intended to apply to all 

inherently hazardous works and occupations within this 

state, and it is the intention to embrace all 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 is 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 arise any hazardous occupation or work 

other than hereinbefore enumerated, it shall come under 

this act and its terms, conditions, and provisions as 

fully and completely as if hereinbefore enumerated." 

From these sections of the Revised Codes of Montana we hold that 

custom combining does come within the purview of the Workmen's Compensation 

Act. Workmen's Compensation laws, as with other social legislation, are to 

be interpreted liberally in order to provide as wide a coverage as is possible to the workers of this State. Naturally, of course, this liberal 

interpretation must fall within the bounds set by statutes of our legislature. 

Section 92-202, R.C.M. 1947, hereinbefore quoted, specifically excludes: 

" * * * personal injuries sustained by * * * those 

employed in farming, dairying, agricultural, viticultural, and horticultural, stock or poultry raising * * *It, 

In this particular action, we have a custom combiner who indepently contracts 

to cut a farmer's wheat, and in the course of this operation one of his employees is injured. The custom combiner is not employed in farming. He is 

harvesting a crop which he did not raise, nor own. The custom combiner was 

merely providing a service to the farmer who hired him. This is the only 

issue to which this Court addresses itself, i.e., a custom combiner is not 
excluded from the Workmen's Compensation laws on the ground that he is 

engaged in agricultural employment. 

An extensive annotation on the appl ication of Workmen's Compensation Acts to employees engaged in farming appears in 107 A.L.R. 977. 

Among the many cases therein discussed is Nace v. Industrial Commission, 

217 Wis. 267, 258 N.W. 781. In that 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 is certainly applicable here but we feel that the better 

reasoned authorities support our position. 

For example, one of the later cases is 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 soil 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 that the work was excluded under their Workmen's Compensation 

Act stated: 

"In determining each case whether work done is incidental 

to farming within the Act, the test is the particular 

farming activity engaged in by that workman's own employer, 

not whether the work may be considered incidental to 

farming in general. * * *" 

In the case at hand Romero was injured while in the employment of Jimie 

McBride, the custom combiner. This injury was incurred independently from 

any farming operation. McBride was an independent contractor, and to deny 

the petitioner, Romero, re1 ief would appear to be improper. 

For this reason, the Court grants petitioner relief and directs the 

district court to overrule the order denying the motion to strike respondent's 

defenses of contributorv nealiaenfid as-tion of risk. 1