*1 H3 P.2d 315 Plaintiff, JOHNSON, Milton E.
BOARD OF REVIEW OF INDUSTRIAL Utah, DE- COMMISSION of the State of PARTMENT OF EMPLOYMENT SECU- RITY, al., et Defendants.
No. 8553.
Supreme Court of Utah.
Jan.
view of denying the Industrial Commission him unemployment compensation.1 Mr. regularly had worked Johnson Company the United States Fuel *2 Hiawatha, Utah, approximately mine at for years ten prior off due laid to a re 30, duction in March 1956. He force on involuntarily unemployed was thus and ordinarily, eligible would have been for unemployment His compensation benefits. application rejected ground that was on he was “unemployed” within the mean Security by ing of Employment Act2 operation reason he of his a as of during employment. had done proposition contended The fundamental that by one who for Commission “unemployed” self-employed is not a templated It relies on by Act. under statutes cases decided number of that hold where similar which ours work- time between a divides his Price, Hammond, appellant. for Mark enterprise an and of ing for another eligi- own, make him lay-off does not a Dremann, City, E. R. Salt Lake Fred F. unemployment benefits.3 This ble for Gen., respondent. Callister, Atty. rely upon own efforts so because he can CROCKETT, Justice. support, and the income therefrom supplants intended under and re- the succor seeks review E. Milton Johnson recently of Re- Board is the Act. Illustrative decided decision versal peti- Unemployment 438; procedure A.2d Regular was followed: Shadowens 1. Pa.Super. rejected Comp. case, 49, first a 177 110 A.2d claim tioner’s Ap- 258; Kapera Unemployment Comp. representative; v. department then Pa.Super. finally by Bd., Referee; Rev. 238, Board 178 116 and A.2d peal ; Unemployment Comp. 239 Martin v. Review. Rev., Pa.Super. 412, Bd. of 35-4, 101 A. U.C.A.1953. Unemployment Compensa- 2d 421. v. Muchant Rev., Pa.Super. 85, Bd. tion
U5 Security unemployment consequent case of v. result Hatch from and loss Agency,4 power Idaho court held of purchasing which the which tends to carpenter during ramify that a home who built chain reaction throughout form $7,500 period lay-off acquired economy. reasoned, however, It $16,500 equity was not the act go beyond of its total value was not intended purpose, unemployed under carefully and entitled to benefits and that unless it is ad- ministered, example is the kept Idaho Another depleted Act. will fund Unemploy- Phillips Michigan so it will case of not be to fill in able the breach Commission, Compensation wherein economy stabilize the emergencies attorney had court intended. held plant manufacturing in a worked suggested It is that if one can follow two off, who re- was laid until 1947 and occupations, one, termination of registered for but practice turned to his law compensation receive while working and unemployed claim, work and filed a receiving other, from the Act, saying: meaning of within the manage jobs so and terminations as employed, one, receiving income from *3 the words ‘unem- “We believe that compensation being unemployed, for ployed in 28 in individual’ are used § other, part large from the of the time. that, ordinarily accepted their sense difficulty Another is that benefits under the light, engaged in who taken that one is might Act be used to subsidize self-em- rendering remuneration in service for ployment enterprises actually which are in practice or who his to the devotes competition the with business which must profession cus- living which a is providing bear unem- the burden the tomarily un- earned cannot be said to be compensation. ployment It is that obvious employed.” if a worker has two alternatives: self-em- upon rationale based the are cases ployment, under which he can receive ben- Employment Secu of the purpose the prior employment; efits accrued from or declaration the Act, as stated rity employer, to work for an going which of unem the burdens lighten to policy,6 is benefits, deprive him of such course family and his worker the ployment choose the former. he will power purchasing in maintain and to nip are in accord with the the bud We author design economy. The upon by spiral which ities relied Commission which descending economic 35-4-2, U.C.A.1953. Idaho, 1067. P.2d 6. 4. 237, 188, 35 N.W.2d Mich. circumstances, that, ing, one it would seem farmer should bold under usual “unemployed” eligible be considered engaged “unemployed” when from his occupation within benefits the income undoubtedly operation weekly Act, unem- meaning and it is less than the dis- ployment would receive Act not intended benefit amount he true by sub- under the This not mean Act. does against criminate other businesses weekly enterprises. sidizing self-employment he would be entitled to entire amount, 35- benefit but rather under Sec. yet principles, there Conceding the above (c), own 4-3 from his weekly problem in instant case exists critical efforts, week, de- per would be less $6.99 might to what extent an amount, weekly ducted from the benefit spare make industrious use of conformity This conclusion is in family himself time for the benefit of Act, policy of above. as discussed Since for bene- ineligible before he is rendered designed provide sus- minimum job. regular lose should he fits individual, unemployed tenance “self-employed” is Although the term “weekly receiving benefit less than his Act, Sec. 35-4-22 nowhere defined eligible, amount” should be considered “un- (1), word (m) defines the U.C.A.1953 employed by or whether another self-em- employed” as follows: ployed. be deemed 'un- “an individual shall only part specifi- which of the Act employed' any during which week cally self-employment is 35- refers to Sec. performs no services and with re- provides: 5(c) U.C.A.1953 4— payable wages spect to which no are ineligible “An shall be individual him, week of less than * * * if benefits the commission wages payable if full-time work * * that, unemployed * and oth- finds less than his
him benefits, eligible for he has erwise amount.” * * * cause, good failed without wages 22(p) defines as: Section 35-4— self-employ- customary to return to *4 personal “All ser- remuneration (if any) so directed when * * * vices, including the reason- commission.” any cash value of remuneration in able plain purpose to ” of this section was * * * any medium other than cash. potential prevent a source of back, idly sitting twiddling Thus, from applying the above income statutes thumbs, collecting unemployment and part in farm- his engaged who one to de- compensation. Act allowing fails to compensation Since in the latter Commission, un- self-employment, denying former; fine it in to- by the same ken, prescribe power granted regula- der it to where partial is avail- income un- partial and total source, tions in reference able from to either no see we can one employment,7 adopted why rule that reason benefits should be allowed or calling, engages any partially business employed by de- another but profession profitable potentially nied if he works would for himself. That substantially in- his so add it subsidize working penalize for others and come, not self-employed and therefore self-employment, self-employment if “unemployed,” rea- regulation followed, seems were Such pur- would not fulfill the However, light poses necessary. sonable of the Act. previously dis- policy of the considerations It is also recognized that a fair admin- “un- term the definition cussed and istration of requires depart- the act Act, employed” as contained in should ment, in determining the self- income from recovery applied entirely bar be so employment, potential allocate the who, upon being involun- to an individual period come over the it was earned even job, unemployed regular tarily from though actually received then.8 Farm- independent call- attempts engage in an good is a example. That most of much income ing but fails to earn as produce may be sold harvested and would weekly benefit amount otherwise fall, would mean that the farmer case, individual be. Of course either should be having considered as no income avail- himself hold claiming benefits must in the other In this and oc- seasons. other pay employment that able for cupations, if such allocation al- were not did income, greater just as Mr. Johnson lowed, self-employed person de- could circumstances
the instant case. Under such income, fer receipt the actual delib- should income manipulate erately it, so as not to receive account, the same just be taken into it during period. the benefit by an- though were prerogatives the Commis other, reach if does not necessarily be sion are ac exercised in al- amount, he should purposes cordance with the social previously men- lowed As the difference. act. For the same reasons that we have discrim- tioned, other is not business Compensation Act, held the Workmen’s self-employment U.C.A.1953, seq. 35-1-1 against in favor et inated to be liberal- 35-4-22(m) (2), Security Hatch See U.C.A.1953. Agency, supra. note 4 *5 118 appeals the esti-
ly the The found that referee purposes, construed to effectuate products also Security gross Act should his farm mated of value liberally construed and administered.9 year, $1,793 which, allocated over aegis of proceedings conducted under week; per just gives figures in round $34 adver- Industrial are not Commission per week the benefit amount. $1 over sary in trials, but are nature are as court large standards seem intended impartial investigations of That 254 fact because contained acres. strictly prop- the facts. It is therefore not acres, made illusory 40 as inasmuch speak proof er to in terms of burden of 5 up 3 to all tracts of of small scattered understood, as ordinarily are cer- yet there tillable, each, be- acres the remainder tain necessary procedural concepts basic pur- Apparently waste land. kept be making guide in mind applicant’s pose demonstrating that the of determination in each case. exceeded yearly $33
income on basis appears When it from the inves amount, referee benefit of his tigation that the in cov been (most products findings the farm made of employment period, ered requisite for the farm) and on the of which were consumed involuntarily and that he has un become as follows: them assigned values to employed, prima to ben entitled he is facie efits, him unless be which should allowed yield of 2 tons alfalfa, 5 oí with a acres per acre, valued at to the- ton. $200.00 $20.00 something which investigation discloses yield 20 wheat, 4 with a acres ineligible by reason would him 152.00 render per bushel. bushels, valued at $1.90 silage, at valued 5 acres corn $40.00 accept employment, other refusal 200.00 per acre. 150.00 Sale cream. be employment. should Doubts available average 240.00 6 at value calves, $40.00. pigs spring the em coverage of favor of at litter, resolved in from valued 64.00 $8.00. mind, proceed to we ployee. With Total $1012.00 in his applicant’s contention examine the findings “The review that petition for plaintiff is- It seems incontestable that * * * evidence,” by the supported not item right in his that the $240 contention findings should such aware however calves, considered relating should be they find by us if disturbed testimony plainly shows as income. The evidence.10 support reasonable figure represented what the calves that this worth, amount, totally if not their increase value. were Mr. Johnson’s They per obviously week. were not the natural have been unemployed, $33 Corp. Packing 10. Ibid. v. California See Jones 9., P.2d authori Utah to therein. referred ties taken year crease of two from into the determi- making account in Johnson’s cows, kept acquired but nation self- were income Johnson’s .purpose up employment. building his livestock. prop- certainly
determining it is *6 is which particular There about another er assets. to include of business the value the record is that no satisfac- so uncertain $1,012 in- Deducting the from the $240 tory finding Mr. can be made. Johnson definitely figure, come leaves $772 operate did not Rath- by himself. the farm ascertained income. er, 15-year project. it His was family upon In farm addition old son to those listed items and much of his wife did set, work, running the price which an agreed or value was even to the extent of pro- farm income should the record also shows tractor. The entire oats, person- barley and him duced 15 acres of and milk therefore not be attributed and ally, fair eggs consumption, pigs from ought for own and 6 but there pro- the fall The record is devoid of reasonable litter. allocation produced and that indication of the value of items. duced these efforts applicant, his wife fairness to neither the de- and son.
partment arbitrarily nor this court can con- uncertainty exists which In view of the their value clude that exceeded his self-em- as income from to Mr. Johnson’s speculate upon benefit. such Were we remanded for ployment, this cause is income, do, we will re- it would purpose making a deter- more definite $1,000 quire assigning over to these addi- properly assign- of the income mination bring items to the total income for tional him, thereof to the basis able to and plaintiff’s year high enough to exceed views such order consistent make weekly benefit entitlement. appropriate. expressed, as seem herein important very consideration is
Another awarded. No costs finding gross in- that the the fact WADE, J., concurs. knowledge that there It is common
come. farming, costs the same operation WORTHEN, (concurring). Justice type of business. any other Johnson opinion in the and fertilizer alone I concur of Mr. seed testified Justice adding year following: run around coming $400. the. CROCKETT — question is remedial farm ma- and should a tractor and other act operated He op- liberally expenses construed to avoid economic involved chinery which unemployment. security repairs, deprecia- due to eration, and Plaintiff upkeep that he went to work in operation should be testified mines costs of These tion. template accepted living farming. where has cov- because he make a couldn’t petitioner ered What farm after his and at the same employment did on the necessary continuing perform fully services the mine was were discontinued at just working what at service connected with he had done while (farming) possible him to dissenting mine. The of Mr. self-employment. states, customary return to his ITenriod Justice operate “* * * Plaintiff did his farm while work- years many and that for the legis- at the mines. I believe that prior during to his mine work and con- language lature meant what used entire time he templated. had If he discontinued his self- mine, lay- working periods both in employment depart- to enter the mines the periods actively off might, fair reason- if it seemed tinuously engaged farming.” able, to his self-em- direct him return used decision the Board of Review ployment. If he had leased his former self- language, employment (farm) probably be it would claim- “There no that the evidence However, give unfair to such directive. abandoned, ant in the instant case *7 a situation the act would seem to envision abandon, self-employ- or intends to his legis- to the mentioned and the similar contrary, he aas farmer. To the provided for relieved lature his testified that went he intended as time good cause following he has the directive if dairy on to increase his herd in order why not return he cannot or should to offer operation profitable. his make more customary self-employment. to his during self-employment His continued period of work- the time when he was HENRIOD, (dissenting). employer.” wages for for another Justice plaintiff apparent
It is that was at all dissent, opin- I main suggesting that the self-employed. times herein mentioned But completely. ion It volunteers has misfired specifically the act does not cover such a plaintiff and raises issue favorable to provided It not if a claimant case. defendants, which was unfavorable to simultaneously performs work for another suggested by anyone Gratui- in this case. for himself he should wages and work tously anyone’s re- and without benefit of wages work for suspension of the so, opinion attacks quest majority to do the receive benefits because disqualified to findings as to amount of the Commission self-employment. by sending up of income and winds my opinion try. for another interpretation case back In rational my opinion a In point pressed the reversal of a case on a does not con- meaning of the statute barley, with the of 10 acres of 8 or consonant oats and 9 acres by any litigant n duty crop planted money grain, where of nurse with the taxpayers’ preserve farthing’s which not a value assigned possible. by court, this although knowledge common plain- whether issue here is would dictate that the fact finder my opinion self-employed, and in tiff was assigned have these value to considerable was, the he question but that there is no rather crops extensive at arriving by main of farm breakdown figure. Although not an item of notwithstanding. opinion contrary to the magnitude, opinion again siderable the main does, opinion main concluding forgot year’s supply to tell us what a milk arbitrary escape the fallacious cannot from two making cows worth in not self-em- assumption attacking calculations in the Commission’s less in ployed happens to make if he findings. opinion, The majority by a sort customary he would business than usual and silence, nature and extent of minimizes the lay-off period. Such during receive involved in case. this complete violence to assumption does neglected year It to tell us that the old n acceptedmeaning of clear, understandable farmer, miner, been a not a competent recognize and fails language, life, years all his ago that about found he authority.1 complete living himself unable to make necessary to Although it should not be supplementary as a farmer without a never that was raised anwer an issue point appli- come. It fails to out that the except by court for the first anyone this trying cant admitted that make “We are any request to without appeal and time on life, livelihood,” that farm our our income, findings to farm examine prior years many mine work and they were in er- claim made without during time he was entire defendants, who ror, to the in fairness mine, periods in working at the both n mustbe taken the turn of events aback with periods actively lay-off and con- analysis findings appeal, the (cid:127)on this tinuously engaged farming. The main appears a most court what ignores fact that also he had *8 requires effort, this writer to com- labored a farm all his life. owned opinion forgot to main it. The n tell microscopic rather review After a the of the items in addition to us that value, concerning and without clearly the evidence reflects that lists, the record it findings Commission’s were the 7 acres ceding had under cultivation plaintiff also Comp. Unemployment Bd., Bd., Comp. v. Unemployment Rev. Aley Pa.Super. 508, Kapera 241; A.2d Pa.Super. A.2d themselves to that cannot lend calculables prece- a condition capricious, arbitrary or Furthermore, any it degree of-exactitude. opinion us, by the annulment their dent to actuality. reality has blinded itself to uncertain- was such there asserts that then requires imagination It to little know income of farm amount ty as the exact to plaintiff his farm get would continue up- back the case require sending as to long income after month the 6]/2 Repre- Department findings the set the period expired, had the miner with whereas Appeal Ref- the sentative, findings of the any out farm or other outside income would find- Commission’s to reverse eree dip get nothing. plaintiff be This would uncertainty is submitted ings. It ping by the into a fund which was created evidence substantial on resolved miners, industry while of himself and fellow doz- court findings this whose agency farmer, put industry as a in which he dis- not be insisted has of times ens in about the same as he did amount This circumstances. similar under turbed record, mining, con as is reflected in re- said that has many times court nothing Why should tributed to that fund. Com- matters, Industrial spect factual position plaintiff, man of the be dis- will determination mission’s obviously outside means of at least arbitrary, func- clearly turbed'unless family, feeding given himself and his be solely to Supreme Court tion advantage over him who has no farm to to determine lawof questions review n periods rely upon adversity? Why its pursued lawfully has Commission if the mining support should fund the inde-- re- a volume take authority. It would pendent (cid:127) this farmer while his' on this pronouncements score. our view support? fellow worker has none to It is weigh assess and now to court For this say rib answer the Act should be property values to assign its own facts liberally, construed as the main says' opposition to those found in direct be, in aid of it shoud the more favored-' this, Commission, arro- a case like is to worker and to detriment of the less' confessedly pos- power it a gate unto worker. If it is favored to be construed departure from a radical and is such sessed liberally, the man with the farm should not' ap- expressions to make us previous our benefit more than the less fortunate one ridiculously pear inconsistent. farm, hardly without can gain-' —and has, opin the main concluding as it in this case that said here' un-; previous off, pronouce- particularly reverses far better ion when the review, power employment but has laid' continues than ments is the worker application independent yardstick.impossible of without an down source of economic variables, unpredictables and in- relief. because
123 is vulnerable The main also follow criticism that does strikingly
authorities,
similar.2 the re-
McDONOUGH, J., C. concurs dissenting opinion reached in
sult HENRIOD.
Mr. Justice 322 P.2d Lyman, his LYMAN and Edith K. R.
Karl Respondents, wife, Plaintiffs and
v. CORPO- BOND MORTGAGE NATIONAL corporation RATION, State body County, cor- Delaware, Juan San Utah, and politic of State porate and right, claiming persons unknown other all lien in or title, or interest estate com- property described real ownership plaintiffs’ plaint adverse thereto, Defend- clouding plaintiffs’ title ants, Ybarra, personally; V. Amalia V.
Amalia Estate Ybarra, administratrix Velarde, Deceased, Defendants Tomas Appellants.
No. 8633.
Supreme of Utah. Court 14,
Jan. 1958. Skeen, City, appel- E. Salt Lake J.
lants. Frandsen, Price, respondents.
Duane Comp. Bd., 1067; Phillips Michigan Unemployment Unemp. v. P.2d Comp. Comm., v. Muchant 188, 438; Pa.Super. Hatch A.2d Mich. 35 N.W. Idaho, Agcy., Sec. 2d