Wifstad v. Ribicoff, Civ. No. 355.

• Decision Date: 19 October 1961
• Docket Number: Civ. No. 355.
• Citation: 198 F. Supp. 198
• Parties: Martin WIFSTAD, Plaintiff, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of South Dakota

198 F. Supp. 198

Martin WIFSTAD, Plaintiff, v. Abraham A. RIBICOFF, Secretary of Health, Education and Welfare, Defendant.

Civ. No. 355.

United States District Court D. North Dakota, Northwestern Division.

October 19, 1961.

Fred E. Whisenand, Jr., of Davidson & Whisenand, Williston, N. D. and Wallace L. Herreid, Crosby, N. D., of counsel, for plaintiff.

Gordon Thompson, Asst. U. S. Atty., Fargo, N. D., for defendant.

RONALD N. DAVIES, District Judge.

This action was commenced under Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), for judicial review of a final decision of the Secretary of Health, Education and Welfare¹ denying Plaintiff's application for old age benefits.

Martin Wifstad filed his application for old age insurance benefits with the Department of Health, Education and Welfare December 17, 1958. He was 76 years of age at the time. The application was denied, and upon Plaintiff's request for reconsideration, the initial determination was affirmed. A request for a referee's decision was granted, and a hearing held. The referee filed his decision December 31, 1959, affirming the original determination, holding that:

"* * * claimant did not materially participate in the production or management of production of farm commodities in either 1957 or 1958, and that his reported self-employment income in those years is properly excluded from `net earnings from self-employment' as rentals from real estate not received in the course of a trade or business as a real estate dealer under Section 211 (a) (1) of the Social Security Act, as amended."

A request that the referee's decision be reviewed by the Appeals Council of the Social Security Administration was denied, and the decision thus became the final decision of the Defendant Secretary within the meaning of Section 205(g) of the Act. 42 U.S.C.A. § 405(g). Hence this review was sought.

The Plaintiff is the owner of a farm in Divide County, North Dakota. Income was received during 1957 and 1958 from the operation of the farm by a tenant under the terms of an oral arrangement. The tenant had farmed the land from 1951 through 1956 under an agreement stipulating that the tenant was to provide all physical labor in connection with production of crops, furnish all machinery and equipment, provide the seed, and assume all farm expenses. The Plaintiff was to pay the real estate taxes and to maintain two granaries located on the farm. The crops were divided so that the tenant received 75 per cent thereof and Plaintiff the remainder.

Beginning in 1957 the farm agreement was modified in that the tenant was to provide all physical labor in connection with production of the crops and was to furnish the machinery and equipment necessary. Plaintiff was to pay the real estate taxes, maintain the granaries, provide all the seed, pay for half of the harvesting expenses, pay for half the expenses incurred if the crops were sprayed, and pay for the hauling of his share of the grain to the elevator. All of the grain produced was hauled to a commercial elevator and there physically divided, the tenant and the Plaintiff each receiving one-half. Each sold his own share and kept separate accounts.

The Plaintiff Wifstad consulted with the tenant in the spring of each year and then decided what crops were to be planted, what land was to be summer-fallowed and what type of seed was to be purchased for seeding. The farm was operated on a three year rotation basis with half the tillable acreage seeded to crop and the other half summer-fallowed, this plan having been established over the years by Plaintiff as the proper one for the best production on his particular land. The number of acres that was to be seeded to wheat was determined by Government ASC allotment, and therefore, Plaintiff had only to decide whether to plant rye, flax or barley, and how many acres of each.

During the course of the crop year, the Plaintiff visited the farm several times, inspecting the summer fallow and the crop conditions. In one of the two crop years in question Plaintiff, after consulting with the tenant, decided to spray for grasshopper infestation. In case of conflict in opinion as to the advisability of spraying, the final decision was made by Plaintiff.

The referee held that the formulation of a farm plan does not count toward material participation and that there was no...