Cache Valley Turkey Growers Ass'n v. Industrial Commission

• Decision Date: 30 December 1943
• Docket Number: 6628
• Citation: 106 Utah 1,144 P.2d 537
• Parties: CACHE VALLEY TURKEY GROWERS ASS'N v. INDUSTRIAL COMMISSION
• Court: Utah Supreme Court

144 P.2d 537

106 Utah 1

CACHE VALLEY TURKEY GROWERS ASS'N v. INDUSTRIAL COMMISSION

No. 6628

Supreme Court of Utah

December 30, 1943

Original proceeding by the Cache Valley Turkey Growers Association for certiorari to review an order of the Industrial Commission fixing contributions payable by plaintiff under the Unemployment Compensation Act.

Order annulled and case remanded.

Young &amp Bullen, of Logan, for plaintiff.

Grover A. Giles, Atty. Gen., Zar E. Hayes, Asst. Atty. Gen., and F F. Dremann, of Salt Lake City, for defendant.

LARSON Justice. McDONOUGH and WADE, JJ., WOLFE, Chief Justice MOFFAT, Justice, concurring.

OPINION

LARSON, Justice.

Certiorari to review an order of the Utah Industrial Commission fixing contributions to be paid by plaintiff under the Unemployment Compensation Act of Utah on wages paid to plaintiff's employees.

There is no dispute as to the facts. Plaintiff was organized in 1942 as a non-profit mutual corporation, for the purpose of processing and preparing for market the turkeys of the association. It is conceded that there is no market for the turkeys until they have been processed, and that processing of large flocks on farms of the individuals is not practicable unless the farmer has the equipment necessary to do the job in the same way as it is done by the processing plants, because large numbers of birds must be moved in a day or two because of market demands; and that such equipment is too expensive for each farmer to purchase.

Plaintiff's plant was completed in 1942, and processed birds that year. At the conclusion of the operation of the plant for the year, the Industrial Commission fixed contributions to be paid by plaintiff to the unemployment compensation fund, based on wages paid by plaintiff during the operating period. The writ of certiorari is to review such order. Plaintiff takes the position that it is exempt from the provisions of the act because its employees perform "agricultural labor" as defined in subsection (j)8 of 42-2a-19, U. C. A. 1943. Defendant contends for a restricted interpretation of this clause and argues that, because the work is not done on a farm, because it is done in a plant having the physical properties similar to commercial plants in the vicinity doing the same business, and because the labor is hired, this processing does not constitute something done "as an incident to ordinary farming operations," and therefore is an employment within the terms of the act.

Subsection (j) (6) of 42-2a-19, U. C. A. 1943, provides:

"The term 'employment' shall not include: * * * (D) Agricultural labor (as defined in paragraph (8) of this subsection)."

Subsection (8) of the section provides:

"'Agricultural labor.' The term 'agricultural labor' includes all services performed-- * * *

"(D) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption." (Italics added.)

It is upon the italicized portion of the statute that defendant places much reliance to maintain its position, arguing that such a plant operated by the plaintiff is commercial in nature, and could not be "an incident to ordinary farming operations."

We should keep in mind the procedure in interpreting the statute as laid down in Singer Sewing Machine Co. v. Industrial Comm. (On petition for rehearing), 104 Utah 196, 141 P.2d 694. It was there said that once it has been determined that a service relationship exists as that term is defined by the act, the filtering out clauses of the act should be consulted to determine whether that service relationship is filtered or culled out of those within the act. We start, then, in this case with the service relationship, for it is not denied that plaintiff's employees are in such relationship, as defined by the act. We look to the provisions of subsection (8) (D) to determine the meaning of "agricultural labor" which the act declares shall not constitute "employment" as that term is used therein. This is a filtering out section to exclude what has already been recognized as a service relationship, from the operation of the act.

This section has never before been directly interpreted by the court, but in Roberts v. Industrial Comm., 97 Utah 434, 93 P.2d 494, 496, a somewhat similar case was brought before the court. One Elder was employed as a sheep shearer. Plaintiff was the owner of the shearing equipment; shearing being done for any sheep men who desired to use the facilities. The principal issue there involved was whether Elder was an employee of plaintiff or of the sheep men. The court held that there was no evidence to sustain a finding that Elder was employed by plaintiff. After so deciding, the court said:

"The Legislature has said that 'agricultural labor' is exempt. Section 19(j) (6) (4). Is this not a definition of the 'kind' of work done, and not 'for whom it is done'? For a similar principle see: Jones v. Industrial Comm., 55 Utah 489, 187 P. 833."

In the Jones case, supra, a number of farmers had gone together and bought a threshing machine, operating it on a share basis, and threshing the grain of others as well as that of the part owners of the machine, though it appeared that the machine was purchased primarily for their own use. At the time of the accident, no threshing had yet been done that season, but during the year threshing was done for the public generally. When the accident occurred, preparations were being made to thresh the grain of a nonowner of the machine. The court held there that claimant at the time of his injury was engaged in agricultural labor, and therefore exempt from the provisions of the Workmens' Compensation Act. The statute there interpreted is 42-1-41, U. C. A. 1943 (provisions interpreted identical in Sec. 3111, C. L. 1917), which merely stated that "agricultural labor" is exempt from the provisions of the act, without any definition of the term. Davis v. Industrial Comm., 59 Utah 607, 206 P. 267, 269, also under the Workmen's Compensation Act, is another case which supports the idea that the term "agricultural labor" defines the kind of work done, and not for whom it is done, or where it is done. The court there said:

"The applicant for compensation herded sheep for his employer on the public domain. If he was an agricultural laborer when herding on the owner's ranch, the fact that the sheep were herded elsewhere would not remove him from this class of labor. If raising stock on a small farm is agriculture, raising stock on a large ranch is the same; and if raising and caring for sheep on the owner's premises is agriculture, the laborer's avocation is not changed by the sheep being pastured and herded elsewhere, whether on the public domain or not."

A similar case is Keefover v. Vasey, 112 Neb. 424, 199 N.W. 799, 802, 35 A. L. R. 191, where a number of farmers purchased threshing equipment together. As in the Jones case, supra, it was held that employees of the owners of the machinery were agricultural laborers, in spite of the fact that some contract threshing was done for nonowners. The court said:

"To hold that defendants were not employers of farm laborers while threshing the grain of Bradley, but would be such when threshing the grain of Vasey, or some other part owner of the machine, would tax our powers of distinction to the point of confusion."

See, also, In re Roby, 54 Wyo. 439, 93 P.2d 940. Considering these authorities together, it becomes apparent that it does not matter where or for whom the work is done, it is the kind of work that is the controlling principle; and to meet the requirements of the statute in this instance it must be "incident to ordinary farming operations." Keeping this in mind, it will be seen that defendant's argument that the employees are taken out of the class of agricultural laborers because the work is not done on a farm or for a farmer, but is done for a corporation in the plant of that corporation, is without merit. Especially is this so as defendant admits that had this same work been done on a farm for a farmer, the employees would have been exempt from the provisions of the act.

In Batt v. Unemployment Comp. Div of Ind. Acc. Bd., Idaho, 123 P.2d 1004, 1005, 139 A. L. R. 1157, it was held that employees hired by an individual to process fruit and vegetables, that is, wash, sort and pack them preparatory to marketing, were agricultural laborers, in spite of the fact that the greater portion of the products processed were purchased from the individual farmers and not produced by the processor. The court said:

"It is clear that the appellant does, for hire, just such work as the farmer would have to do himself or hire someone else to do, on the farm or elsewhere, in preparation of his products for market. For this labor, the appellant received and deducted from the sale price 'the expenses including a charge for processing and a brokerage charge,' and paid the balance to the farmer. * * *

"I fail to see wherein the work done upon consigned products is any less 'agricultural labor' than that done upon the same kind of products purchased by appellant, or grown by him on his own farm....