A provision excepting "farm laborers" from the operation of an Act,28 places outside the Act one employed to do the ordinary work done by one hired by a farmer to aid in the common incidents of agricultural employment,29 but does not except employés working

28 The Act was not intended to confer its advantages on farm laborers or impose its burden on farmers. In re Keaney, 217 Mass. 5, 104 N. E. 438. The Compensation Act does not apply to farmers. (Code Supp. 1913, tit. 12, c. 8a) Op. Sp. Counsel to Iowa Indus. Com. (1915) pp. 9, 5.

29 (St. 1911, c. 751, pt. 1, § 2) In re Keaney, 217 Mass. 5, 104 N. E. 438. A farmer, operating his own threshing machine and using it exclusively for his own private use, is engaged in an agricultural pursuit, and therefore excluded. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 11.

Where a farm hand is ordered to haul a load of lumber from a point in a city to a railroad depot for shipment to another farm, and is injured while so doing, he is a farm laborer, and engaged as such when injured, and his employer is exempt from liability, even though the goods carried are not for use or connected with the farm upon which he is employed. Ratcliff v. De Witt Co., 1 Cal. I. A. C. Dec. 639. Where one is employed on a farm to milk the cows and take care of the poultry, he is engaged in farm labor, and not within the protection of the Act. Wolf v. Scripps, 1 Cal. I. A. C. Dec. 509. Where a general farm hand, employed to cut wood and do general work as required about a country resort and vineyard, lost the sight of an eye from a flying wedge which he had been driving into a stump which he was cutting up for firewood to be used in such resort and vineyard, he was engaged in farm labor at the time of injury. Boschetti v. Lecas, 3 Cal. I. A. C. Dec. 39. Carpentry. Where a carpenter is engaged by a farmer for the sole purpose of building a barn, and is injured while working upon said barn upon the farm, he is not at the time of his accident engaged in farm labor, and is therefore under the protection of the Act. Craig v. Hartson, 2 Cal. I. A. C. Dec. 235. Where a carpenter by trade works at both carpentry and farm labor, but is hired out as and engaged as a carpenter when injured, and was hired for the job of building a cottage, he is a carpenter, and not a farm laborer. Blaine v. McKinsey, 1 Cal. I. A. C. Dec. 641.

Hay Baling.—A workman engaged in the operation of a hay baling machine on the ground where the hay is produced, although the employer is not a farmer or an agriculturist, but one who goes about the country baling hay with his machine by the ton for farmers, is engaged in farm and agricultural labor, and his accidental injuries are not compensable. Neimeyer v. Volger, 2 Cal. I. A. C. Dec. 305. Where a contractor engages in baling hay with different farmers upon their ranches, and his employé is injured while on the

for one engaged in a commercial or other non-agricultural enterprise, though he be a farmer.31

30

A provision excepting employés engaged in horticulture excludes an employé working as nurseryman and gardener in setting out trees and plants and embellishing a townsite.32 The right to compensation is determined by the character of the labor actually being done when the accident occurs, or the major portion of the tasks to be performed, rather than by the fact that the employé occa

33

farm baling hay for his employer and for the farmer, such injured employé is engaged in farm labor at the time of the accident, and is not within the protection of the Act. Vincent v. Louis, 2 Cal. I. A. C. Dec. 130. Where an employer owns a hay press, which he moves from farm to farm, baling hay on contract for the owners of said farms, and his employé is injured while working on the hay press on a farm of a person for whom hay is being baled on contract, such employé is engaged in farm labor at the time of his injury, and his employer is not liable under the Act. Morris v. Spears, 1 Cal. I. A. C. Dec. 317.

30 Operators of threshing machines upon a commercial basis are within the act when they thresh other people's grain for hire. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 11.

Where a woodchopper is injured at the end of a year's continuous employment cutting wood on a 40-acre tract of timber land, one acre of which is under cultivation as a garden, and all the cut wood is shipped away by the employer for sale, the returns therefrom being the only income of the tract, the employé is not engaged in farm labor, even though the employer is clearing the land to make a farm of it. Pappas v. Warren, 2 Cal. I. A. C. Dec. 874. 31 Where a farmer owning a sugar mill goes about the community grinding cane for hire, he is engaged in a commercial enterprise, and is not engaged in an agricultural pursuit. (Code Supp. 1913, § 2477m [a]) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 12.

When a farmer engages in ordinary teaming, such as hauling water for a mine, he has stepped outside the exempted classes of "farm, dairy, agricultural, viticultural or horticultural labor, stock or poultry raising, or household domestic service," and his employé automatically comes within the protection of the Act. Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114.

22 Ruprecht v. Dominguez Land Corporation, 3 Cal. I. A. C. Dec. 5.

33 Where a person is employed to work about a city residence, a principal portion of his duties being to take care of and exercise blooded horses (not involving stock raising), but a minor portion of his duties consists in gardening and performing incidental tasks in connection with the upkeep of the HON.COMP.-13

34

sionally does farm labor. The purpose for which the work was being done determines its character. Plowing is commonly farm labor, as is also the clearing of brush and shrubs to prepare land for cultivation.35 But if done to make the land ready for railroad

premises, such employé is not engaged in farm labor, particularly where at the time of the accident he is engaged in exercising horses, and not in gardening. Cleveland v. Hastings, 2 Cal. I. A. C. Dec. 15.

34 The fact that an employé, whose regular trade was that of a carpenter, and who was employed on a farm to do carpentry, sometimes did farm labor, when there was no carpenter work to be done, does not suffice to class him as a farm laborer. Feehan v. Tevis, 2 Cal. I. A. C. Dec. 434.

35 Mann v. Locke, 2 Cal. I. A. C. Dec. 415.

Clearing land.-Where a farmer, clearing his land of brush and timber to make the land available for agricultural purposes, engages a teamster to haul the wood and brush to town for sale, the employé is engaged in farm labor while doing such work, and is not within the Act. Hanson v. Scott, 2 Cal. I. A. C. Dec. 730. Where a person is employed to cut and burn brush and trees in clearing land, the land to be set out to fruit trees when cleared, he is engaged in farm labor. Whitney v. Peterson, 1 Cal. I. A. C. Dec. 306. Where an employé was injured in the operation of a portable sawing machine while cutting cordwood into stove length on a farm, the wood having been cleared from the land incidental to the operation of the farm, to be disposed of by sale and partly for farm use, he was engaged in farm labor. Miller v. Algar, 2 Cal. I. A. C. Dec. 584. Employés engaged in forestry are, ordinarily, not within the classes excluded by section 14 of the Act; but in cases where the essential purpose is the clearing of land for agriculture, and not lumbering or other branches of forestry, and the wood-sawing is only a matter of disposing of the by-product of the clearing of land for the purpose of making a farm, it is proper to regard the labor of cutting such wood as farm labor. Id. Where land was presently being operated as a dairy farm, and it was necessary to remove old stumps from a considerable area to change the use of the land from grazing to fruit raising, the laborers employed for such purpose were farm laborers, excluded from the compensation provisions (sections 12 to 35, inclusive) under the definition of "employé” contained in section 14. Martin v. Russian River Fruit & Land Co., 1 Cal. I. A. C. Dec. 18. In determining the classification of employés, as defined in section 14, it is proper to take into consideration mcdern progress and contemporary methods in industrial pursuits. The use of high explosives and power agencies has become, in a large measure, incident to agricultural industry, the use of blasting powder was held to be an agricultural use, and the laborers employed in the use thereof to be engaged in farm labor. Id.

construction, or for the construction of expensive reservoirs, dams, or canals for irrigation purposes, the workmen so engaged are not engaged in farm labor.36 In Iowa, farmers can make the Act a part of their contract with their hired help, and then insure their liability under such contract.37 Likewise the Michigan Act does not exclude farmers from accepting the provisions of the law, but exempts them from its operation merely in the sense that they suffer no harm by not coming under it.88

In the words of Chief Justice Rugg, of the Supreme Judicial Court of Massachusetts, the Massachusetts Act "is a practical measure designed for use among a practical people. A farmer may adopt it if he desires. Any contract of insurance made by him. under its terms is enforceable. On the other hand, if he does not desire to make it available to all his employés, he may procure insurance for a limited portion of them. If there are those, separable from others by classification and definition, whose labor is more exposed or dangerous, or whom he may desire to protect for any other reason, there is nothing in the Act to prevent him from doing so. The purposes of the Act are such that, if feasible, it ought to be extended to include cases within its scope interpreted in the

36 Where an employé of a farmer was clearing a levee in a farmer's protection district, under the superintendence of the protection district foreman, for the purpose of preparing the ground to be raised two feet by scrapers, thus enabling the farm owners to safeguard their lands against overflow, and a willow branch struck the employé in the eye, the employé was not engaged in farm labor. Mann v. Locke, 2 Cal. I. A. C. Dec. 415. The impounding and distributing to farmers of water for irrigating purposes is not farm, dairy, agricultural, viticultural, or horticultural labor, and an employé of a corporation engaged in such an occupation is subject to the Compensation Act. Matney v. Azusa Irrigating Co., 2 Cal. I. A. C. Dec. 898. Where a carpenter was employed on a farm to do carpentry and other work, and met with an accident while actually doing carpenter work, at carpenter's wages, in the construction of a dam for an artificial lake, such work was not farm labor, and the employer was liable for compensation. Feehan v. Tevis, 2 Cal. I. A. C. Dec. 434.

37 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 9.

38 Shafer v. Parke, Davis & Co., Mich. Wk. Comp. Cases (1916) 7.

light of its purpose, and to encourage its adoption by those who for reasons of legislative policy were excepted from its express operation. If construed to compel farmers to insure for all their laborers if they undertake to insure for any of them, the inevitable tendency would be to discourage resort to the Act in any respect.” That a farmer engaged in selling produce procured insurance for "drivers and helpers" did not render him liable under this Act for injuries to a farm laborer.40

§ 60.

Domestic and household servants

The term "domestic servant," within Acts excluding domestic and household servants, means one who lives and works in the house, and does not exclude a servant whose employment is out of doors." Whether a chauffeur is excluded from the provisions of the Act depends upon the circumstances surrounding each par ticular case, and where he looks after the car and drives it, and boards and sleeps on the premises, he is excluded as being a domes tic servant. A household servant is one who dwells under the same roof with the family under circumstances making him a member thereof.42 The status of a household servant is determined rather by his relation to the family than by his relation to the service.13 For example, a workman hired to tend the furnace, mow the lawn, and do odd jobs about the house and premises, who has a room in the house in which to sleep, and who eats at the family table, is

39 In re Keaney, 217 Mass. 5, 104 N. E. 438.

40 Id.

41 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 16.

Whether a chauffeur is excluded from the provision of the Act depends upon the circumstances surrounding each particular case, and where he looks after the car and drives it, and boards and sleeps on the premises, he is excluded as being a domestic servant. Op. Atty. Gen. on Minn, Wk. Comp. Act, Bul. 9, p. 20.

42 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 16.