One who engaged in self-employment was not totally unemployed within the Unemployment Compensation Act, despite failure of the venture. Accordingly, it was error to have allowed benefits as for total unemployment to one who subsequent to his discharge for cause went into the milk business and was endeavoring to build up a route, upon his claim that he was not making a profit and that he would turn his business over to his minor son if work could be found. Moreover, it did not appear that the claimant was "available" within the meaning of the act.
ELLS, J.
Subsequent to his discharge for cause the claimant went into the milk business for himself and was endeavoring to build up a route. Upon his claim that he was not making a profit, and that he would turn his business over to his 17-year-old son if work could be found, the commissioner allowed benefits.
One who has engaged in self-employment is not totally unemployed. Yet by this ruling the claimant is to receive benefits as for total unemployment. The test applied apparently was the success or failure of the self-employment venture. I think the correct test is the fact of self-employment, and not the ultimate outcome of it. This claimant is self-employed. The administrator contends that he is therefore not unemployed within the meaning of the act; that a man who enters upon a business venture of his own has removed himself from the labor market at least during the period of his business venture. I believe this to be a correct interpretation.
A second necessary factor is eligibility — availability. I do not believe this claimant was available within the meaning of the act.
The delay in decision is due to a misunderstanding which led the court to believe the case had been otherwise disposed of.