Carstens Packing Co. v. Unemployment Compensation Division of Industrial Accident Board, 7114

• Decision Date: 23 December 1943
• Docket Number: 7114
• Citation: 65 Idaho 370,144 P.2d 203
• Parties: CARSTENS PACKING COMPANY, a corporation, Appellant, v. UNEMPLOYMENT COMPENSATION DIVISION OF THE INDUSTRIAL ACCIDENT BOARD, of the State of Idaho, Respondent
• Court: Idaho Supreme Court

144 P.2d 203

65 Idaho 370

CARSTENS PACKING COMPANY, a corporation, Appellant, v. UNEMPLOYMENT COMPENSATION DIVISION OF THE INDUSTRIAL ACCIDENT BOARD, of the State of Idaho, Respondent

No. 7114

Supreme Court of Idaho

December 23, 1943

Rehearing denied January 11, 1944.

1. Unemployment Compensation

The employees of packing company who fed livestock at company's feed lot in preparation for market or company's own packing plant were not performing services "only incidental" to company's principal occupation, and hence their employment was not "covered employment" by virtue of provision of Unemployment Compensation Law providing that exception of agricultural labor from "covered employment" does not exclude services performed in employ of any person who operates a farm "only incidental" to a principal occupation which would be termed covered employment. (Sess Laws 1939, chap. 239, pp. 575-577, secs. 18-3, 18-5 (f), as amended by Sess. Laws 1941, chap. 182, pp. 391-394, secs 18-3, 18-5 (f); Sess. Laws 1941, chap. 182, p. 409, secs. 7-5.)

2. Unemployment Compensation

The words "only incidental", as used in provision of Unemployment Compensation Law providing that exception of enumerated varieties of agricultural labor from covered employment does not exclude services performed in employ of any person who operates farm "only incidental" to a principal occupation which would be termed covered employment, means service performed for no other purpose than for the use, benefit, and promotion of the principal occupation which would otherwise be termed covered employment. (Sess. Laws 1939, p. 577, sec. 18-5 (f), as amended by Sess. Laws 1941, chap. 182, pp. 392-394, sec. 18-5 (f).)

"Incidental" is something that is only an adjunct or incidental to something else, which something else is evidently the principal thing to which the other is incidental. "Incidental" is defined as depending upon or appertaining to something else as primary, something necessary, appertaining to, or depending upon another which is termed the principal. The word "only" means, when used as an adjective, sole, solitary, alone, single; and, when used as an adverb, means merely, barely, simply, and nothing else, solely, no other than, single, without more.

Rehearing Denied January 11, 1944.

Appeal from the Industrial Accident Board. From an order of the board, holding that appellant, Carstens Packing Company, is a "covered employer," within the meaning of secs. 18-3, 18-5, and 7-5, chap. 182, 1941 Session Laws, the company has appealed. Order reversed and cause remanded.

Delana and Delana for appellant.

The term "agricultural labor" includes every process and step necessary to the completion of a finished farm product ready for consumption. (Cook v. Massey, 38 Ida. 264, 220 P. 1088; Carstens Packing Co., v. Ind. Acc. Board, 63 Idaho 613, 123 P.2d 1001.).

In order for a business to be incidental to a covered business, such business must be a part and parcel of the covered business. (Ocean Accident and Guaranty Co. v. Ind. Comm., 69 Utah 473, 256 P. 405, par. 6, Utah; Sickles v. Ballsteon Refrigeration and Storage Co., 156 N.Y.S. 864; Times Publishing Co. v. Stines, 1933 OK 526, 165 Okla. 300, 25 P.2d 791, Okla.).

In order for a business to be incidental to another business, such business must be a necessary part of, or usually, or naturally and inseparably a part of such other business. (First Natl. Bank v. State, 68 L.Ed. 486-493; Nicolette Natl. Bank v. Tresh Turner Co., 74 N.W. 160, Minn.; People v. Chicago Gas Trust Co., 22 W.E. 798-800.).

Bert H. Miller, Attorney General, Thomas Y. Gwilliam and W. B. Bowler, Assistant Attorneys General, for respondent.

Whether an individual's services are within the term "excepted employment" is determined by the type of operations of his employer and not the particular services rendered by the employee at the time. (Chap. 182, 1941 Ses. Laws, sec. 18-5, sub-par. (f); Crowley v. Idaho Industrial Training School, 53 Ida. 606, 26 P.2d 180; Mulanix v. Falen, 64 Ida. 293, 130 P.2d 866.).

A person engaged in two types of operations can be within the meaning of "covered employment." (Chap. 182 1941 Sess. Laws, sec. 18-5, sub-par. (f); Crowley v. Idaho Industrial Training School, 53 Ida. 606, 26 P.2d 180; Eberlin, et al, v. Industrial Accident Commission, 297 N.W. 429 (Wis.) .).

The operations of the Carstens Packing Company within the State of Idaho are only incidental to its packing and processing operations. (Chandler & Chandler v. The City of Shreveport, 162 So. 427; Words and Phrases, fifth series, vol. 3, p. 337; Words and Phrases Judicially Defined, vol. 4, p. 3494; Nicollet National Bank v. Fresh Turner, 74 N.W. 160.

AILSHIE, J. Budge and Dunlap, JJ., concur. GIVENS, J., dissenting. Holden, C.J., concurs in this dissent.

OPINION

AILSHIE, J.

This is an appeal from a decision of the Industrial Accident Board and comes here for consideration under the provisions of the italicized proviso to sec. 18-5, chap. 182, 1941 Session Laws, which chapter is an amendment to chap. 239 of the 1939 Session Laws (p. 563, at 577). Subdivision (f) of sec. 18-5 of the 1939 Act, defines "covered employment" and Contains only the following words, "* Agricultural labor." Subdivision (f) of the corresponding chapter and section of the 1941 Session Laws, reads as follows:

"(f) Services performed in the employ of an individual owner or tenant operating a farm in connection with the cultivation of soil, the production and harvesting of crops or the raising, feeding or managing of livestock, bees or poultry, or in connection with the processing, packing or marketing of the produce of such farm where such processing, packing or marketing is an incident to the ordinary farming operations of such individual owner or tenant; provided, however, that nothing in this subsection shall be construed to exclude from the term 'covered employment' services performed in the employ of any person or persons who operate a farm or farms only incidental to a principal occupation or occupations which would otherwise be termed covered employment within the meaning of this Act." (Italics inserted.)

The case was submitted to the Industrial Accident Board by stipulation of facts, which included "all of the evidence heard and admitted in the matter of the Carstens Packing Company for refund before the Industrial Accident Board . . . as shown in the transcript . . . in said matter," being the transcript in the case of Carstens Packing Co. v. Industrial Accident Board, 63 Ida. 613, 123 P.2d 1001, decided under subset. (f), sec. 18-5, chap. 239 of the 1939 Sess. Laws.

Appellant operates slaughtering and packing houses at Tacoma and Spokane, Washington, and owns and operates a large cattle ranch in Montana. It also owns three acres of land near Kimberly, Idaho, and has been lessee since 1927 of a 10-acre tract; since 1935 a 7-acre tract and a 28-acre tract near Jerome, Idaho. Sugar beets have been grown on about eight acres of the 28-acre tract; and the rest of the land has been covered with buildings, sheds, corrals, and for feeding yards used in feeding and fattening cattle and hogs. An average of 500 head of feeder cattle are transferred each year from Montana to Kimberly and Jerome, to be fed and fattened; and in addition thereto, appellant annually buys, feeds and fattens around 60,000 head of hogs, 8,500 cattle and 6,000 sheep at its Kimberly and Jerome feed yards. The hog feeding and fattening is a year-around business, with approximately the same number being fed and fattened through the different seasons. All the sheep and about 90% of the cattle are handled by appellant and fed and fattened from October 1st to April 1st, and about 10% during the remainder of the year. Except for the sugar beets raised by appellant, the balance of the feed used in these operations is purchased from farmers in the neighborhood. The feeder livestock is not ready for slaughtering and butchering purposes until fed and fattened. Of the feeder livestock thus handled at Kimberly and Jerome, the stipulation of facts show the following:

"9. That of said feeder livestock purchased, fed and fattened by the Carstens Packing Company in said operations at Kimberly and Jerome, Idaho, about 50% are shipped to the Carstens Packing Company's packing houses at Tacoma and Spokane, Washington, for slaughtering, and the remainder of said livestock are shipped and sold to eastern markets at Denver, Colorado, Omaha and Chicago and to southern markets at San Francisco, and Los Angeles, and western markets at Portland, Oregon, for slaughtering, depending upon the state of the market at said different places.

"10. That the purchasing of said feeder livestock and feeding and fattening of the same, and the purchasing of feed for them is done and carried on in the same way as is being done by farmers and stockraisers and livestock feeders in the vicinity of Kimberly and Jerome, Idaho."

Half the employees at Kimberly and Jerome are employed the year around; the others are employed only from October first to April first, the regular average number of employees in Idaho, being about thirty. The packing plants at Tacoma and Spokane were operated many years before fattening operations were commenced in Idaho. Other packing companies in Washington, Oregon, Montana, and Idaho do not generally conduct such feeding and fattening operations.

The Industrial Accident Board found and concluded that the principal occupation of appellant is "packing processing and dealing in meats and meat products and the slaughtering and manufacturing of slaughtered products"; that the feeding and fattening operations carried on by appellant in Idaho are "only incidental" to such principal occupation;...