Hubble v. Perrault ( 1956 )

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 agricultural pursuit. The operation is not ■changed by the processor going closer to the grower to conduct the first step of its processing.

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.