Appellant, Smith's Frozen Foods of Idaho, Inc., hereinafter referred to as the Company, operates a processing plant in Lewiston, for the freezing and canning of green peas. During the season of 1955, it purchased the peas raised on approximately 4,800 acres of land for processing in its
The peas raised by the Company on its leased lands were threshed by it by means of stationary threshing machines commonly called viners. The Company owned these viners which were also used by other pea growers in threshing crops. The farmers, generally selling peas to the Company, did not own viners.
The pea vines are hauled from the field to the stationary viners and are there pitched into the threshing machines by laborers called pitchers. The Company entered into a contract for the season of 1955 with the defendant, Alex Perrault, a labor contractor, for the furnishing of these pitchers for the threshing of its crops; and such laborers were thereafter furnished and paid by the labor contractor.
The claimant was employed on July 18, 1955, by Alex Perrault at Spokane, Washington, taken to the Gibbs farm in Nez Perce County and put to work on July 19 at a stationary viner as a pitcher. While so engaged claimant was struck by a truck and seriously injured. He thereafter duly filed claim with the Industrial Accident Board for compensation under the Workmen's Compensation Law. A hearing was had on such claim; at which hearing defendant, Alex Perrault, did not appear. The Industrial Accident Board made an award in favor of claimant and against all three of the defendants. From such award, the appellants, Smith's Frozen Foods of Idaho, Inc., and Travelers Indemnity Company, have appealed to this court.
The independent contractor, Alex Perrault, did not carry workmen's compensation insurance on the laborers supplied by him including claimant. It therefore must be conceded that under the provisions of Section 72-811, I.C., the liability or non-liability of the Company for compensation is to be determined as if the claimant had been working directly for the Company.
The material part of Section 72-105a, I.C., of the Workmen's Compensation Law, reads as follows:
The Company had not filed an election placing its employees engaged in agricultural pursuits under the coverage of the Workmen's Compensation Law.
In its award, the Industrial Accident Board states:
The Board held that "in the area of its principal place of business at Lewiston, Idaho, it (the Company) has pursued as an integral part of its processing the growing and harvesting of the peas." Upon such finding the Board ruled that the employment in which claimant was engaged at the time of his injury was not an agricultural pursuit and as such exempt from the provisions of the Workmen's Compensation Law, and the Board accordingly made an award to claimant.
It is settled in this state that threshing of farm crops is an agricultural pursuit within the meaning of the Workmen's Compensation Law and this is not disputed by respondent. Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A.L.R. 200; Mundell v. Swedlund, 59 Idaho 29, 80 P.2d 13; Big Wood Canal Co. v. Unemployment Compensation Div., 61 Idaho 247, 100 P.2d 49.
In order to sustain the finding of the Board that claimant was not engaged in an
We quote from Mundell v. Swedlund, 59 Idaho 29, at page 36, 80 P.2d 13, at page 16, as follows:
In Reed v. Russell, 67 Idaho 84, at page 88, 172 P.2d 853, at page 854, it is said:
Mulanix v. Falen, supra, is authority for the rule that the same work done under certain conditions and under certain circumstances may be agricultural, and under other conditions and circumstances may not. Blackburn v. Olson, supra, does not appear to have any bearing on the question at issue.
Cases cited from other jurisdictions are not too helpful as they are decided under differing statutes and apply varying tests to determine whether the employment is or is not agricultural.
We conceive the rule in this jurisdiction to be that the general character of the work for which the employee was hired or is required to perform is the test of whether the labor was performed in a covered employment or in an exempt employment. Where the employee is a general employee engaged in the general business of his employer, then the principal business of the employer, whether it be a covered occupation or an exempt occupation, governs the nature of the employment of the employee. Where the employer is principally engaged in a covered occupation, the general employee is covered although he was incidentally engaged in an exempt occupation at the time of the accident. Likewise, if the principal occupation of the employer is exempt, the employee is not covered although at the time of the accident he was engaged in performing services in a covered occupation.
In this case, the claimant was hired to perform exclusively agricultural labor in an agricultural pursuit, and was engaged in such pursuit at the time of the accident.
The Board was in error in finding that the raising of the pea crops on the leased lands was an integral part of the processing business of the Company. The Company was engaged in two distinct occupations. Its major occupation was that of a processor and its minor though substantial occupation was raising agricultural crops.
In Carstens Packing Company v. Industrial Accident Board, 63 Idaho 613, 123 P.2d 1001, the Carstens Packing Company was engaged generally in the meat packing business in the State of Washington. It owned and operated lots for feeding and fattening livestock in Idaho, for processing in its meat packing business. This court held that laborers employed in such feed lots were engaged in agricultural employment.
We quote from Ocean Accident & Guarantee Co. v. Industrial Commission, 69 Utah. 473, 256 P. 405, at pages 407-408:
See also, Melendez v. Johns, 51 Ariz. 331, 76 P.2d 1163; In re Roby, 54 Wyo. 439, 93 P.2d 940.
It has been suggested that the actual threshing of the peas was an integral part of the processing business of the Company. While it is true that the Company owns the viners, there is nothing in the record to indicate that the threshing of the green peas is not done by the growers or that
In threshing the peas at the time of respondent's injury, the Company was still engaged in the agricultural pursuit of producing and preparing for market an agricultural crop and the respondent was engaged in non-covered agricultural employment under the provisions of the Workmen's Compensation Law.
The award of the Industrial Accident Board will be reversed and the cause remanded with directions to enter an order denying an award to respondent. Costs to appellants.
TAYLOR, C. J., and SMITH, J., concur.
ANDERSON, J., dissented before his death.
CRAMER, District Judge (dissenting).
In this case Smith's Frozen Foods has engaged in both covered and exempt employment under the Workmen's Compensation Act. No clear-cut divided line in its operations is apparent. No question can arise as to the fact that in the planting, growing and cutting the pea vines upon lands leased by it the Company is engaging in an agricultural pursuit, nor can it be seriously contended that their principal business or pursuit is not the freezing and canning of green peas.
It has been held that the term "agricultural pursuit" may include every process and step taken and necessary to the completion of a finished farm product. Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A.L.R. 200.
I have no argument with this holding so far as ordinary farm products are concerned. However, in the frozen food industry the processor goes into the fields with his equipment and takes possession of the crop in a manner entirely different than is generally practiced by the ordinary processor of other farm products. It is essential that the product in this case, green peas, must be of a certain degree of maturity and condition, and must be rapidly processed once they are removed from the ground. From the time the vines are cut until the peas are frozen speed is an essential characteristic of the process. Of this practice we may take judicial notice in a general way. Cook v. Massey, supra.
Ordinarily when crops such as green peas are produced for market the grower takes them from the vines and delivers them to the market in pods. In order to produce properly frozen food it is necessary that peas be handled with such particular care that the delivery of the peas in pods to the freezing plant may not result in an inferior product, one which would not lend itself to providing the quality of unbruised peas for efficient freezing: In the final analysis the grower is not concerned with the handling of the peas after he has delivered the product to the point required by the processor. In practical effect what the processor is doing is extending his processing lines as close as possible, both in point of time and distance, to the severance of the farm product from the ground. There can be no analogy between green peas and a staple article such as grains and other farm products that are not subject to deterioration by delay in processing. Had the vines been taken by the grower to the processing plant and there unloaded I doubt that it would be seriously contended that the subsequent handling of the crop would constitute an
According to the testimony the grower cuts the pea vines and puts them in windrows. At that point the processor takes over its operations. The pea vines are picked up off the ground, loaded into trucks contracted for by the processor and under its complete control. The trucks take the vines and dump them in front of the viner. The cost of the delivery from the windrows to the viner is charged to the grower. The operation after the vines were put into windrows was the same on lands where Smith's did not grow the peas as where they did.
After the vines are dumped in front of the viners another group of employees contracted for by the processor and under its control pitches the pea vines into the viners and carries away the boxes of peas and changes the lugs for the peas to run into. A crew of two men manned each viner, one pitching and one carrying away the peas. They alternated in their work. This was the particular employment engaged in by the claimant.
The handling of the peas from the time they left the windrows until the peas were finally processed was all an integral part of the processing rather than the raising and harvesting of the peas.
I agree that the Board was in error in finding that the raising of crops on the leased land was an integral part of the processing business of the Company. However I cannot agree that the podding of the peas by the viner was an agricultural pursuit by reason of its analogy to the harvesting and threshing of small grains. So far as the grower is concerned a finished product was delivered when the peas and vines were placed in windrows.
When the peas have been separated from the vines in the viners the operation of taking the peas away from the viners cannot be considered any part of the raising or harvesting of the peas. The peas running into the lugs from the viners are most certainly a finished farm product.
The Board found that claimant was lifting a lug of fresh peas out of the viner when the injury occurred. It is true that there was testimony that claimant was employed to pitch vines, but other than the claimant's testimony there was no detailed explanation of his actual work. He testified that he thought at the time he was hurt he was carrying a lug of peas from the viner. Since there is substantial evidence to support the Board's finding it must be accepted as a fact on appeal.
The award of the Board should be affirmed.