Dowery v. State , 84 Ind. App. 37 ( 1925 )

The Indiana Girls' School is, and for many years has been, a state institution for the education and training of delinquent girls. In connection with, and as a part of, the institution there is operated a farm for the production of grain, vegetables, fruit and live stock. On December 6, 1924, Joseph Dowery, an employee of the school, whose duties as such employee were limited to work in the operation of the farm, received an injury as a result of an accident which arose out of and in the course of his employment. The parties had not filed with the Industrial Board their election not to be bound by the provisions of the Workmen's Compensation Act.

Following Dowery's death, appellants, as his dependents, applied for compensation. From an order of the board denying compensation, this appeal is prosecuted.

The question for determination is: Was Dowery a farm or agricultural employee within the meaning of § 9 of the Workmen's Compensation Act (Acts 1919 p. 158), which provides that the act shall not apply, "to farm or agricultural employees, * * * nor to employers of such persons, unless such employees and their employers file with the Industrial Board their voluntary joint election so to be bound?"

It is appellee's contention, and by its order denying compensation the Industrial Board held, that although the farm was being operated in connection with, and incidental 1, 2. to, the conduct of the school, Dowery, whose work was confined to farm labor, was a "farm employee" within the meaning of that term as used in the section of the act to which we have referred. It is to be observed that the statute does not classify the employee in accordance with the general occupation or business of the employer. Whether a laborer is or is not a farm employee is determined from the character of the work he is required to perform. 28 R.C.L. 718; Shafer v. Parke, Davis Co. (1916), 192 Mich. 577, 159 N.W. 304; Bates v. Shaffer (1921), 216 Mich. 689, 185 N.W. 779; Fleckles v. Hille (1925), 83 Ind. App. 715, 149 N.E. 915. It follows that Dowery was a farm or agricultural employee, and that the Industrial Board did not err in denying compensation to his dependents.

It is suggested that our holding in this case cannot be reconciled with the decision of this court in the case of In re Boyer (1917), 65 Ind. App. 408, 117 N.E. 507, wherein it 3. was held that an injury to a workman on a traveling wheat-threshing outfit was compensable. It may be that within the letter of our compensation act, the man employed to assist in the threshing of wheat is doing agricultural labor, but in construing and administering the law, we must not lose sight of its scope and purpose. It is apparent that farm laborers, like domestic employees, were excluded from the operation of the act because such labor is less hazardous; being less hazardous, there is less need of protection. To be sure, the farm laborer may have some days each year of hazardous employment, but they are the exception and not the rule. With the employee engaged as a threshing-machine hand, and going from farm to farm, it is different. His work is constantly of the most hazardous nature, much more hazardous than the work of the average factory employee. It is not reasonable to suppose that the law makers would intentionally exclude from the benefits of the compensation act those who were regularly employed as machine men in the threshing of grain. The compensation act is remedial in character, and as was well stated in In re Duncan (1920),73 Ind. App. 270, 127 N.E. 289: "It should be liberally construed to the end that the purpose of the legislature, by suppressing the mischiefs and advancing the remedy, be promoted, even to the inclusion of cases within the reason, although outside the letter, of the statute." In the Boyer case, this court disregarded the fact that the threshing-machine employee might be excluded by the letter of the law, and correctly held that since such employee is within the reason of the act, he is also within its protection.

The conclusion of this court in the Boyer case is correct, and is the settled law of this state. There are, however, some statements in the reasoning of the court in that opinion which are not in harmony with this opinion. Such statements are disapproved.

The award is affirmed.