Sprague-Dawley, Inc. v. Moore

• Decision Date: 30 January 1968
• Docket Number: SPRAGUE-DAWLE,INC
• Citation: 155 N.W.2d 579,37 Wis.2d 689
• Parties: , a Wisconsin corporation, Plaintiff-Appellant, v. Richard A. MOORE and Industrial Commission of Wisconsin, Defendants- Respondents.
• Court: Wisconsin Supreme Court

Page 579

155 N.W.2d 579

37 Wis.2d 689

SPRAGUE-DAWLEY, INC., a Wisconsin corporation, Plaintiff-Appellant, v. Richard A. MOORE and Industrial Commission of Wisconsin,

Defendants- Respondents.

Supreme Court of Wisconsin.

Jan. 30, 1968.

Ross, Stevens, Pick & Spohn, Madison, Thomas D. Zilavy, Richard C. Glesner, Madison, of counsel, for appellant.

Arnold J. Spencer, Chief Counsel, Max J. Peltin, Madison, for Indus. Comm.

HEFFERNAN, Justice.

Sprague-Dawley bases its contention primarily upon the words of the pertinent statutory provisions. The statute, sec. 108.02(5)(g)(1), Stats., exempts employment in 'agricultural labor,' which is defined in sec. 108.02(23)(a) and (e) as services performed:

'(a) On a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of live stock, bees, poultry, and fur-bearing animals and wildlife.'

'(e) As used in this subsection, the term 'farm' includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.'

The argument of Sprague-Dawley, when reduced to its essentials, is merely that the albino rat is a 'fur-bearing animal' or is a kind of 'wildlife.' In the event the Sprague-Dawley rats fit either of these categories, labor performed in connection with their culture is labor on a 'farm' as defined in the Act and, hence, the services are not covered by the Unemployment Compensation Act. The problem presented is one of statutory construction and, therefore, is a matter of law to be decided by this court without giving any special weight to the conclusions of the Industrial Commission. Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 404, 69 N.W.2d 573, 70 N.W.2d 576. While much space in appellant's brief is devoted to the thesis that a white rat is a 'fut-bearing animal,' this position was substantially abandoned at oral argument.

A 'furbearer' is defined in Webster's Third New International Dictionary as 'An animal that bears fur esp. of a commercially desired quality.' 'Fur' is defined, in part, as 'A piece of the dressed pelt of an animal (as ermine, rabbit, seal) used as a material to make, trim, or line wearing apparel, or other articles * * * an article of clothing made of fur. * * *' A 'fur breeder' is defined as 'one that breeds fur-bearing animals, esp. for commercial purposes.'

A recent decision of the United States District Court for the Northern District of Georgia, although not precedent for this Court, is persuasive in its reasoning. Therein it was claimed by the Southern Rabbit Corporation that rabbits raised for experimental purposes were exempt from the provisions of the Fair Labor Standards Act. 29 U.S.C.A. § 203(f) exempted 'the raising of livestock, bees, fur-bearing animals, or poultry.' The Court adopted the administrative standard defined in 29 C.F.R. sec. 780.133 (1961) providing that '(a) The term 'fur-bearing animals' has reference to animals which bear fur of marketable value * * *.'

The Court stated:

'The clear intent of the agricultural exemption is to exempt agricultural or farm activities. The non-farm commercial activity of buying animals (rabbits or others) from farmers and other 'independent contractors', caring for and feeding most of them until they meet buyers' specifications, and then selling them as experimental animals, as is the case here, does not constitute the raising of furbearing animals, and is not exempt as 'agriculture'. The fact that rabbits raised solely for experimental purposes by this defendant may also be raised by others as fur-bearing animals is not a valid basis for exempting this defendant.' ¹

It is conceded that the rats raised by Sprague-Dawley have no value for their pelts. We conclude that white rats raised for experimental purposes are not 'furbearing animals' within the meaning of the statute.

Are albino rats raised for experimental purposes 'wildlife'

The commission also concluded that albino rats are not 'wildlife' under sec. 108.02(23), Stats., because:

'* * * they do not exist in a state of nature, do not inhabit natural haunts, are not of a kind not ordinarily subjected to domestication, and are not produced without the aid and care of man. On the contrary, albino rats have been developed by man through selective breeding.'

Webster's Third New International Dictionary defines wildlife as:

'Living things that are neither human nor domesticated; esp: the mammals, birds, and fishes that are hunted by man for sport or food.'

Sec. 29.01(1), Stats., contains the following definition of wild animal:

'Wild Animal. 'Wild animal' means any mammal, bird, fish, or other creature of a wild nature endowed with sensation and the power of voluntary motion.'

The Internal Revenue Service, Em.T. 437, C.B. 1942--2, pages 208, 209, takes the position that, for purposes of the F.U.T.A., wildlife includes:

'All animals belonging to a species or class generally considered wild regardless of the element or elements which they inhabit.'

The above definitions and interpretations amply support the commission's...