Wheeler v. California Department of Employment

HOYT, J. pro tem.

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The appellant petitioned the court below for a writ of mandate directing the California Department of Employment to grant credit for certain wages received by him in its computation of his entitlement to unemployment compensation benefits. This appeal is from the judgment denying this writ of mandate.

The facts are simple and undisputed. One Joseph Stevenson undertook to build a house intended solely as his private residence, and decided to handle as much of the project himself as he could. Some of the work he subcontracted. For the rest, he hired a superintendent and foreman, and about six carpenters. The appellant was one of the carpenters.

Stevenson’s principal trade or business was operating the Stevenson Equipment Company, a farm equipment distributorship. The services performed by the carpenters were in no way connected with this business, but were rendered Stevenson in his capacity as an individual building his own home.

Construction of the home began in January 1958, and continued intermittently into May 1958. During the calendar quarter ending March 31, 1958, none of the carpenters worked on as many as 24 days. During the succeeding quarter, four of the carpenters, not including appellant, worked on each of at least 24 days. Appellant worked on from 17 to 19 days in the first, and on 8 or 9 in the second of these quarters. He later filed a claim for unemployment benefits. The base period used in determining the amount of his weekly award included these two quarters during which he worked for Stevenson on the home-construction project. The California Department of Employment determined that the four carpenters who worked on each of some 24 days in the quarter ending June 30, 1958, were “covered employees” for the purposes of unemployment insurance benefit wage credits, but that appellant’s services

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were excluded from “employment” under section 640 of the Unemployment Insurance Code, and that appellant was not entitled to credit for the wages which he received for this work in establishing his award of benefits.

The department’s determination was affirmed by a referee, by the Unemployment Insurance Appeals Board, and by the court below. In each instance the ground of decision was that Stevenson, in constructing his private residence, was not engaged in a “trade or business” within the meaning of section 640 of the Unemployment Insurance Code, and that appellant’s services, having been rendered on fewer than 24 days in either quarter, were therefore excluded from “employment” within the meaning of that section. By this appeal the matter is presented for the first time to the higher courts of this state. We agree with the construction given section 640 by the court below.