Melendez v. Johns

76 P.2d 1163, 51 Ariz. 331, 1938 Ariz. LEXIS 221

• Court: Arizona Supreme Court
• Decided: March 7, 1938
• Docket: Civil No. 3919.
• Status: Published

Opinions

ROSS, J.

This proceeding is one under the Workmen’s Compensation Law. Rev. Code 1928, sec. 1391 et seq., as amended. The Industrial Commission denied Melendez compensation and dismissed his application therefor on the ground that the work he was doing when injured was not covered by the Compensation Law. The employers were Garwood Johns and Wayne Brand, according to the commission’s findings. The commission is made a party as the representative of the State Compensation Fund.

On or about May 1, 1936, and after the spring lettuce season in the Salt River Valley was practically over, the employers, Johns and Brand, agreed to and did buy a lettuce field located a short distance south of Glendale for the purpose of harvesting and shipping it to the markets. This was, the only transaction of the kind in which Johns and Brand had ever engaged together. Johns’ business, according to his testimony, was the buying, shipping, and growing of lettuce. Brand’s business was the buying in the field, harvesting, and shipping of produce, including lettuce. Whether he was a grower does not appear.

Johns and Brand employed L. F. McKillip to harvest this field of lettuce for the stipulated price of 16 cents a packed out crate at the packing sheds. McKillip employed Melendez to assist in harvesting, and said he was to do anything he told him to do. There was considerable discussion at the hearing as to just what his duties were, and it was stipulated by counsel that his job was “picking lettuce.” It was the duty of the pickers to follow the cutters and pick up from the ground the lettuce and put it into field crates. The work of the cutter was to cut the lettuce with a lettuce knife, and then there were the packers who packed the lettuce into the crates at the shed. "While riding on a truck on the 2d of May from the field to Phoenix, Melendez suffered an injury to his hand in a collision with another automobile. At the time he was on his way to the packing shed to be paid for his day’s work. The truck in which he was riding was under the control of McKillip.

There were about twenty cutters, pickers, and packers engaged in harvesting this field of lettuce.

The Industrial Commission under these facts found that Melendez was an agricultural worker not employed in the use of machinery, and denied his application for compensation, the employers not having elected to bring agricultural workers not engaged in the use of machinery under the Workmen’s Compensation Law, and ‘ ‘ ordered that said proceedings be dismissed by reason of lack of jurisdiction.” A motion for a rehearing was made in due course and denied, and we are asked to review the proceeding.

The petitioner’s claims, we think, may be stated to be (1) that Melendez and his coworkers were not agricultural workers. His counsel in her brief says:

1 ‘ Certainly no one after reading all the evidence in this case could question that Johns and Brand had in service three or more workmen or operatives regularly employed in the same business, except agricultural workers. ’ ’

(2) That the Workmen’s Compensation Law as revised in the Code of 1928, sections 1418 and 1419, makes employers of agricultural workers subject to the Compensation Law, even though “not employed in the use of machinery.” We will consider these points in the reverse order.

The Workmen’s Compensation Law was passed in 1925, chapter 83. The relevant portions of the sections involved, and as originally passed, read as follows :

“Section 44. Employers Subject to This Act. — The following shall constitute employers subject to the provisions of this act:

“(1) The state, and each county, city, town, municipal corporation, and school district therein.

“(2) Every person, firm and private corporation, including every public utility, that has in service three or more workmen or operatives regularly employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, except agricultural workers not employed in the use of machinery, and domestic servants; provided, that employers who have in service agricultural workers as designated and domestic servants shall have the right to come under the terms of this act by complying with the provisions thereof and all rules and regulations of the commission.

“The term ‘regularly’ as herein used, shall include all employments, whether continuous throughout the year or for only a portion of the year. It means all employments in the usual course of the trade, business, profession or occupation of an employer. . . .

“Section 45. Employee, Workman and Operative. The terms ‘employee,’ ‘workman,’ and ‘operative,’ as used in this act, shall be construed to mean:

“(1) Every person in the service of the state, and of every county, city, town, municipal corporation, or school district, including regular members of lawfully constituted police and fire departments of cities and towns, under any appointment or contract of hire, express or implied, oral or written, except any elective official of the state, or of any county, city, town, municipal corporation, or school district therein, or other official receiving more than $2,400.00 per year salary.

“(2) Every person, except agricultural laborers as designated and domestic servants in the service of any employer, as defined in subdivision 2 of Section 44, who employs three or more workmen or operatives regularly in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally or illegally permitted to work for hire under the laws of the state, but not including any person whose employment is hut casual and is not in the usual course of trade, business or occupation of his employer.”

These two sections of the act of 1925 in the 1928 revision were changed to read as follows:

Ҥ 1418. Employers included; independent contractor. The following employers shall be subject to the provisions of this article: The state, and each county, city, town, municipal corporation and school district therein; and every person who has in his service three or more workmen or operatives regularly employed in the same business, or establishment, under a contract of hire, except agricultural workers not employed in the use of machinery, and domestic servants; employers of such agricultural workers and domestic servants may, however, at their election come under the terms hereof by complying with its provisions and the rules and regulations of the commission.

“The term ‘regularly employed,’ as herein used, includes all employments, whether continuous throughout the year or for only a portion of the year, in the usual trade, business, profession or occupation of an employer. . . .

“§1419. Employee, workman and operative. The terms ‘employee,’ ‘workman,’ and ‘operative,’ as used herein, mean: Every person in the service of the state, and of a county, city, town, municipal corporation, or school district, including the regular members of lawfully constituted police and fire departments of cities and towns, under appointment or contract of hire, except the elective officials and except officials receiving more than twenty-four hundred dollars per year salary; every person in the service of any employer subject to this article as defined in the preceding section including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and is not in the usual course of trade, business or occupation of the employer.”

It will be readily conceded that the correct interpretation of the original section 44 excludes from the act employers of agricultural workers not using machinery and domestic servants, unless such employers elect to come under the law. It is equally certain that the same meaning is carried forward in the revision of that section as found in section 1418, supra. A comparison of the two sections shows some verbal changes were made, but no change in meaning. In the revision, employers of agricultural workers as designated and domestic servants are not subject to the act. Whatever may be said of changes in other sections, section 44, as revised, excludes from the act employees not working with machinery.

The next section (45) of the original act is complementary to section 44. The two sections fit into each other. The first names the employers subject to the act and the other the employees. The first excludes employers of agricultural workers not using machinery and domestic servants, and the latter likewise excludes them from the benefits of the act. The revision of section 45 into section 1419, although changing the verbiage, does not change the meaning, but in the respects now questioned takes particular pains to preserve the meaning of section 45 as originally passed. It is true, in naming who is an “employee,” “work man,” or “operative,” the revision substitutes for the phrase, “Every person, except agricultural laborers as designated and domestic servants in the service of any employer, as defined in subdivision 2 of Section 44,” the phrase, “every person in the service of any employer subject to this article as defined in the preceding section. ’ ’ Sec. 1419.

Looking to section 44 and to the revision of it, section 1418, we find employers of agricultural workers not using machinery and domestic servants are not subject to the act, and such definition of “employer” is expressly preserved in section 1419. An employer, as defined in the preceding section, if his employees are agricultural workers not using machinery or domestic servants, is not subject to the act.

Just looking to the context of these correlative sections as originally passed and as revised, it is quite plain that employers of agricultural workers not using machinery do not fall within the act and are not subject to it unless they so voluntarily elect. If the portion of section 45 quoted above had been entirely omitted from the revised section 1419, the employers of agricultural workers not employed in the use of machinery would not under section 1418 be subject to the provisions of the act. In other words, the definition of employers, as found in section 1418, excludes from the provisions of the act employers of agricultural workers not using machinery; and if section 45 had never been enacted or revised as in section 1419, still employers of such workers would not be within the letter or spirit of the act.

We should not overlook that we have adopted a rule of construing the provisions of the Revised Code of 1928, where changes in the language have been made, to the effect that we will regard such changes as an effort to harmonize or reduce in language or remove inconsistencies, rather than an effort to change the meaning of the law. The act authorizing the revision of the Code, chapter 35, Laws of 1925, directed the Code Commissioner to

“revise and codify the laws . . . harmonize where necessary, reduce in language, and remove inconsistencies where the same are found to exist.”

The commissioner, after completing the work, in the preface to the 1928 Code says in part:

“It is hoped that the purpose and intent thus expressed have been fairly carried out. ... To reduce statute law in language is not only the demand of the layman but produces clearness and certainty. . . . The 1913 Civil and Penal Codes contained 7057 sections. From 1913 to 1927 an additional 4499 sections of general legislation had been enacted. All this was reduced to 5349 sections.”

The Compensation Act itself was reduced from 98 sections to 66. From the percentage in the reduction of language one might well conclude that was one of the chief things accomplished in fact or intended by the revision.

In Re Estate of Sullivan, 38 Ariz. 387, 300 Pac. 193, 195, we said:

“It is well known that it was the object of the code commissioner and the Legislature in preparing the Revised Code of 1928 to change the legal meaning of the existing law as little as possible, but, as stated in the preface to the official edition of said Code, ‘to reduce in language’ and to avoid redundancy. Chapter 35, Session Laws 1925. We should therefore presume that when a word, a phrase, or a paragraph from the 1913 Code is omitted from the Code of 1928, the intent is rather to simplify the language without changing the meaning, than to make a material alteration in the substance of the law itself. Of course, if the only conclusion which can be drawn from the new language is that it was intended to change the legal effect of the statute, the latest expression of the will of the Legislature must prevail, but where two meanings can be given, we should assume rather that one which leaves the law as it was originally than the one which changes the legal effect of the statute as well as its phraseology.”

In State Tax Com. v. United Verde Extension Min. Co., 39 Ariz. 136, 4 Pac. (2d) 395, 398, the question was as to whether a taxpayer who paid his taxes under protest was, in a successful suit to recover excess taxes, entitled to interest. We said under section 4887 of the 1913 Code he clearly was entitled to interest from the time of such payment, because it was so written in the law. We also said that he was entitled to interest, although the substituted section (3065) of the 1928 Code for section 4887, supra, had omitted the provision for interest. We cited to sustain such construction in Re Sullivan’s Estate, 38 Ariz. 387, 300 Pac. 193, saying:

“We have previously held that, when a certain paragraph of the 1913 Code or the session laws following it is carried forward in changed language into the 1928 Code, the presumption is that the change is in form only, unless it clearly appears the legislative intent was to change the substance.”

Again in Albert Steinfeld & Co. v. Allison Min. Co., 41 Ariz. 340, 18 Pac. (2d) 267, 270, we said:

“The purpose of such revision [1928] . . . was not to change the substance of the law but to simplify the language.”

There are other cases to the same effect.

It is manifest, we think, that neither the Code Commissioner nor the legislature intended to change the meaning of sections 44 and 45, supra, by the-revision of 1928, but simply to reduce the language by substituting, for instance, in the revision of subdivision (2) of section 44 the two words “every person” for the ten words “every person, firm and private corporation, including every public utility”; and in subdivi sion (2) of section 45, “every person in the service of any employer subject to this article as defined in the preceding section” for

“every person, except agricultural'laborers as designated and domestic servants in the service of any employer, as defined in subdivision 2 of Section 44. ’ ’

The change that the petitioner insists was made is very important and a far-reaching one. It would greatly modify the original Compensation Law, and that, too, when there is no evident purpose on the part of .the legislature to make such change. Such a radical change of course was not intended.

We have construed section 1418, supra, in Hight v. Industrial Com., 44 Ariz. 129, 34 Pac. (2d) 404, 405. The facts in the case were that Dr. E. J. Hight was farming about 1,000 acres of land in alfalfa, grain, and other farm products, and owned about 400 head of cattle, 250 head of which were being looked after for Doctor Hight by LeEoy Patten. Among Patten’s tasks was that of pumping water for these-cattle in his charge with a gasoline engine, but he did not cultivate any land or raise any crops. He was. hurt while lassoing cattle. We held that Patten was not entitled to compensation because he was an agricultural worker not using machinery when injured. After quoting section 1418, we said:

“It is clear from this section that it was the purpose of the Legislature in enacting the Workmen’s Compensation Law (Rev. Code 1928, § 1391 et seq.) to exclude from its terms those eng’aged in agricultural pursuits, except those employed in the use of machinery, and the probable reason for this was that in the opinion of the Legislature workers therein, other than those falling within the exception, are not sufficiently subjected to injury by accident to justify this extra burden on the employer. Hence, to compel them to procure insurance covering injuries that occur so infrequently, notwithstanding the lower rate of premium required for this protection, places upon that industry, the Legislature must have felt, a burden incommensurate with the benefit received. . . .

“But if one is employed as a general agricultural worker, that is, to do the tasks one hired as an agricultural or farm hand is called upon to perform, and in the discharge of these duties it becomes necessary for him at times to use machinery and at others not to use it, he is entitled in the former but not in the latter instance to the protection the Compensation Law gives. This, of course, is true only when there are three or more employed in the use of machinery in the same business. Hence, if one, or even two, should be engaged in work of this character, and a third should be irrigating or doing work not necessitating the use of machinery, any injury resulting to either or both of the two former from an accident occurring while they were so employed would not, it seems clear, be compensable under the statutes, since there would not then be as many as three engaged in the phase of the work the Compensation Law covers.”

This is a clear and definite declaration by this court that employers of agricultural workers not employed in the use of machinery are not subject to the law, unless they elect to be. It might be suggested that in the Hight case the claimed change in the law made by the revision was not called to the court’s attention, and that if it had been the decision might have been different. "We think there was no change in the law, and that if the point had been urged our decision would have been the same. So we conclude that the revision of the Workmen’s Compensation Law of 19-28 did not change the meaning of sections 44 and 45, but that a correct construction of the revised sections will give them the meaning of the corresponding sections in the original act.

The other point made by petitioner, if we understand him aright, is that because Johns and Brand were buyers and shippers of lettuce Melendez and his co-employees engaged in harvesting the let tuce were not agricultural workers, but industrial workers. We get this thought from the petitioner’s fourth proposition of law, which is:

“Harvesting of crops when it is not a part of the ordinary mixed duties of a farm hand, but is a matter of skilled occupation pursued by a person not engaged as a farm hand, is industrial and not agricultural labor.”

Whether this states a correct proposition of law we do not undertake to determine. It has no application here. Under the evidence all the employees were engaged in the same business; that of harvesting a lettuce crop. The mere statement of what they were doing shows it was not skilled work, but common labor; also, that there were no mixed duties. The Industrial Commission’s findings are that such work was agricultural and that the employers had not elected to be subject to the Compensation Law. If the commission had found the employers were within the provisions of the act, it would have been contrary to both the facts and the law. In Hight v. Industrial Com., supra, one of the questions was whether a cow hand whose task was to look after cattle was engaged in agricultural work, and we held that he was. We quoted from three standard works the definition of “agriculture,” and all of them agreed that it includes: one says “harvesting of crops,” another “removing the crops,” and the other “gathering in the crops.” In other words, the harvesting of a crop is just as essentially agricultural as is the planting and cultivating of it to maturity.

Nor do we think the incident of ownership changes the character of the work of harvesting from agricultural to industrial or commercial work. Where lettuce is grown as a commercial article, as in Arizona, it must-be cut, picked, and crated for the market, and whether by the grower or the purchaser the work is agricul tural. It does not cease to be agricultural on change of ownership, as where the grower before it is harvested sells the crop to a third person who harvests and markets it.

When an agricultural worker ceases to be such under the Compensation Law excluding him from its provisions and becomes otherwise, because he is doing for his employer work not agricultural in character, has been before the courts and has received different answers (Miller & Lux v. Industrial Com., 179 Cal. 764, 178 Pac. 960, see 7 A. L. R. 1296, Industrial Com. v. Shadowen, 68 Colo. 69, 187 Pac. 926, 13 A. L. R. 955, Cook v. Massey, 38 Idaho 264, 220 Pac. 1088, 35 A. L. R. 208, Smith v. Jones, 102 Conn. 471, 129 Atl. 50, 43 A. L. R. 954, and 107 A. L. R. 977), but that question is not here. Melendez was doing nothing but agricultural work.

In Ocean Accident & Guarantee Co. v. Industrial Com., 69 Utah 473, 256 Pac. 405, 407, the evidence shows that the employer owned 180 acres of land, from a part of which it was engaged in excavating, cleaning, and marketing gravel and sand, and upon about 40 or 50 acres of which tract it was growing alfalfa hay, which was fed to the animals used in operating the gravel pit. The employee’s work was exclusively in the growing and harvesting of the alfalfa, and while he was at such work he was struck and killed by lightning. The controlling statutes in the case were sections 3110 and 3111, Compiled Laws Utah 1917, as amended by chapter 63, Laws Utah 1919, a part of the Workmen’s Compensation Law. An inspection of these two sections shows that our sections 44 and 45, supra, must have been copies thereof with the difference that our sections include employers of agricultural workers employed in the use of machinery, a provision that occurs in no other Compensation Act, so far as we have been able to ascertain. In passing upon whether the widow and children of the deceased were entitled to compensation, the court said:

‘ ‘ Cutting and raking hay are essentially agricultural pursuits and persons employed to perform such work and paid by the day are agricultural laborers. Tested by the nature of the work the deceased was performing at the time he met his death, he was expressly excluded from the provisions of the Workmen’s Compensation Act above quoted. . . .

“The cultivating, irrigating, cutting, raking, hauling, and stacking of hay requires almost constant attention and constitutes an occupation or business as much as that of marketing sand and gravel. The mere fact that the company’s agricultural pursuit was a minor business or occupation does not change its status so long as the agricultural operations are of such a nature as to constitute a usual trade, business, or occupation.

“It is contended on behalf of the applicants for compensation that the general business of the employer is the controlling feature in determining the nature of the employment and the right to compensation. It will be observed that the provisions of the Workmen’s Compensation Act place domestic servants and agricultural laborers in the same class. It seems clear that the Legislature intended that an employer of agricultural laborers, as well as an employer of domestic servants, does not come under the provisions of the act without he elects so to do so long as the employees are engaged exclusively in the one or the other of those vocations. It would be a strange doctrine to hold that domestic servants of a person whose occupation is subject to the provisions of the Workmen’s Compensation Act are within its provisions while.domestic servants of a person engaged in an agricultural pursuit are excluded therefrom. On principle we can see no good reason why an employer engaged in any of the occupations included within the act may not have employees engaged exclusively in agricultural work and be subject to the same law as the agriculturalist is subject to when he employs agricultural laborers, and we believe such was the clear intention of the Legislature as expressed in the Workmen’s Com pensation Act. Indeed, to hold otherwise may well subject the act to the constitutional objection of class legislation. A person whose general business is that of a manufacturer, merchant, banker, or other trade or occupation covered by the Workmen’s Compensation Act, has the same right to also engage in agricultural pursuits, and while so engaged in an agricultural occupation should be, and we are of opinion is, subject to the same law as a person who makes agriculture his exclusive occupation or business. This principle is well established by numerous adjudicated cases, among which the reader is referred to the following: Shafer v. Parke, Davis & Co., 192 Mich. 577, 159 N. W. 304; Marietta v. Quayle, 79 Ind. App. 9, 137 N. E. 61; Dowery v. State, 84 Ind. App. 37, 149 N. E. 922; Seggebruch v. Ind. Comm., 288 Ill. 163, 123 N. E. 276; Vaughan’s Seed Store v. Simonini, 275 Ill. 477, 114 N. E. 163, Ann. Cas. 1918B, 713; In re Patrick Keaney Case, 217 Mass. 5, 104 N. E. 438.”

The general rule is stated in 28 Ruling Case Law 718, section 11, as follows:

“Agricultural employment has been excepted, as a rule, from the operation of the compensation acts in the United States, Canada, and England, though it frequently has been provided that farmers may elect to bring thémselves within the statute. Here, as elsewhere, the test is the work actually performed by the employee, and not the general occupation or purpose of the employer. The expression ‘ agriculture ’ includes horticulture, forestry, and the use of land for any purpose of husbandry, inclusive of the keeping or breeding of live stock, poultry, or bees, and the growth of fruit and vegetables. The numerous tasks incidental to these activities are all within the scope of the employment of a farm laborer.”

71 Corpus Juris, 376, section 92, states the rule as follows:

“By the weight of authority, whether an employee is a farm laborer, under a compensation act, is determined by the general character of the work he is required or was hired to perform, and not by the ordi nary or principal business of the employer, if that business is one other than that in which the employee is engaged, nor by the particular task on which the employee was engaged when injured, nor by the place where it was being performed.” See, also, Hight v. Industrial Com., supra.

What was said by the court in Dowery v. State, 84 Ind. App. 37, 149 N. E. 922, 923, is particularly applicable to our statute:

“It is to be observed that the statute does not classify the employe in accordance with the general occupation or business of the employer. Whether a laborer is or is not a farm employe is determined from the character of the work he is required to perform.”

To the same effect, see, also, Peterson v. Farmers’ State Bank, 180 Minn. 40, 230 N. W. 124; Koger v. A. T. Woods, Inc., 38 N. M. 241, 31 Pac. (2d) 255.

We conclude that the business of harvesting a lettuce crop is agricultural; that petitioner’s work at the time he was injured was agricultural; that the business of cutting, picking, and crating lettuce, and those employed in such work, are excluded from the terms of the provisions of the Compensation Act, unless the employer elects to come under such act; and that, since the employers here did not so elect, the Industrial Commission was without jurisdiction to make an award to petitioner, and properly dismissed his application.

McAlister, c. j., concurs.