No. 12524 INTHE 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, INAND 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 31973t4r. Chief Justice James T. Harrison delivered the Opinion of the Court. This isan original proceeding brought on the relation of Clayton V. Romero seeking a writ of supervisorycontrol directed 

### totherespondents. After an ex parte hearing on June 4, 1973, we issued an order to show cause settinga 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 isthat the districtcourt 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 negligence ascontained inrespondent's answer. Petitioner further states that his remedy by appeal after final judgment iswholly inadequate and such a remedy would be tantamount 

### toa 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 tocombine 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 toan on-the-farm granary where itwas to be stored. Romero had been employed by McBride in the Stateof Oklahoma and had been working forMcBride for over a month. His job atthe 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 lefthand

was caught inthe unguarded grain auger. McBride did not carryWorkmen's Compensation insurance either in the Stateof Oklahoma or the Stateof Montana. The issue presented to this Court iswhether or not an employee of

a custom combiner 

### is excluded from recovery as being an agricultural employee,under theMontana Workmen's Compensation Act. Section 92-202, R.C.M. 1947, states: "Defenses not excluded inpersonal injury action asai

### nst employer innonhazardous occupation and certain other occupations. The provisions of sec

### tion92-201 shall 

### not apply 

### to actions torecover damages forpersonal injuries sustained by household and domestic servants or those employed in farming, dairying, agricultural

## ,viticultural

### , and horticultural

### ,stock orpoultry raising, or engaged inthe operation and maintenance of steam rai1 roads conducting interstatecommerce, or persons whose employment 

### isof a casual nature." Section 92-201, R.C.M. 1947, states: "Defenses excluded inpersonal in jury action-- negliqence of employee--fel low servant--assumption of 

### risk. In an action 

### torecover damages for personal injuries sustained by an employee inthe course of his employment, orfordeath resulting from personal injuries sosustained, itshall not be a defense: 

### "(1) That the employee was negligent, unless such negligence was wi11ful ; "(2)That the injury was caused by the negligence of a fellowemployee; "(3)That the employee had assumed the risks inherent in, incident to, or arising outof his employment, or arising from the failure of the employer toprovide and maintain a reasonably safe place towork, or reasonably safe tools or appliances." This Court finds that the legislature in 1915, atthe time of the passage of the Workmen's Compensation Act, intended to include inthe exclu

### sion of section 92-202, R.C.M. 1947, the normal activities and operation of the farm orranch by the owner and his employees aswell as exchange of work and labor inother casual farm related activities. 

### We believe that the legislaturedid not intend 

### to includecustom combining. Custom combining isa business requiring large sums tobe invested incombines, trucks, trailers and alliedmachinery. This custom combiner started his season in early spring inthe south and proceeded north through themidwest and on to the siteof this accident. Nothing inthiswork isassociated withthe custom combiner's own farm operation. We hold that custom combining 

### is a hazardous business operation andas 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 statuteapplying 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 itisthe 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 1is ted sha11be considered as an employer engaged i

### n hazardous works and occupations as to a11 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, itshall come under this act and itsterms, 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 ispossible to the workers of this State. Naturally, of course, this liberal interpretation must fall within the bounds setby 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 isnot employed in farming. He is harvesting a cropwhich he did not raise, nor own. The custom combiner was merely providing a service to the farmer who hired him. This isthe only issue to which this Court addresses itself, i.e., 

### a custom combiner isnotexcluded from the Workmen's Compensation laws on the ground that he is engaged in agricultural employment. An extensive annotation on the application of Workmen's CompensationActs toemployees engaged infarming appears in 107 A.L.R. 977. Among the many cases therein discussed isNace 

### 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 areordinarilynot helpful because of differencesbetween 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 isthat 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 theirWorkmen's Compensation Act stated: "In determining each case whether work done is incidental to farming within the Act, the test isthe 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 athand Romero was injured while in the employment of Jimie McBride, the custom combiner. This injurywas incurred independently from any farming operation. McBride was an independent contractor, and to deny the petitioner, Romero, re1ief would appear 

### tobe improper. For this reason, the Court grants petitioner relief and directs the districtcourt tooverrule the order denying the motion tostrikerespondent's defenses of contributorv nealiaenfid as-tion of risk. 1