Alabama Mills v. Brand

• Decision Date: 07 October 1948
• Docket Number: 5 Div. 447.
• Parties: ALABAMA MILLS, Inc. et al. v. BRAND.
• Court: Alabama Supreme Court

38 So.2d 574

251 Ala. 643

ALABAMA MILLS, Inc. et al. v. BRAND.

5 Div. 447.

Supreme Court of Alabama

October 7, 1948

Rehearing Denied Feb. 17, 1949.

Martin Turner & McWhorter and Alvin W. Vogtle, Jr., all of Birmingham, for appellant.

J B. Atkinson, of Clanton, for appellee.

LAWSON Justice.

On July 29, 1946, Manuel N. Brand was an employee of the Alabama Mills, Inc., working at its Clanton mill as a 'tying-in operator.' Alabama Mills, Inc., was engaged in the manufacture of textile products. Around one o'clock on that day Brand was 'paid off' and given a separation notice, upon which appears the following notation 'Discharged for refusing to run his regular assigned job. Employee states that he is unable to do heavy lifting and asked his overseer to either give him a helper or if he could not give him a helper discharge him and hire a man that could do the work.'

At the time of his separation, Brand's overseer made an affidavit before a notary public wherein he set out in effect that no other cause or causes entered into the discharge or release of Brand than that set out in the separation notice above referred to. Brand says he did not read the affidavit but admits that he did affix his signature thereto under the statement, 'I hereby certify that the above statement is correct.'

Thereafter, Brand filed a claim for unemployment benefits, which he alleged to be due him under the unemployment law of this state. This claim was allowed by the claims examiner and by the appeals referee. Alabama Mills, Inc., as Brand's last employer and as a party in interest, intervened before the appeals referee and opposed the allowance of the claim. From a decision by the appeals referee allowing the claim, Alabama Mills, Inc., appealed to the board of appeals, which board reversed the determination of the claims examiner and the decision of the appeals referee and held that Brand was not entitled to any benefits.

Thereupon Brand duly took an appeal to the circuit court of Chilton County in accordance with the provisions of § 221, Title 26, Code 1940. The cause came on for trial before the circuit court of Chilton County without a jury on July 22, 1947. Ex parte Miles, 248 Ala. 386, 27 So.2d 777. On August 14, 1947, that court rendered a judgment reversing the decision of the board of appeals and awarding benefits to Brand. Its motion for new trial being overruled, the employer, Alabama Mills, Inc., has appealed to this court. While the Department of Industrial Relations was a party defendant in the circuit court of Chilton County, it did not join in this appeal although notice of the appeal and invitation to unite therein was given the director of the department.

There are four assignments of error. The first three relate to rulings of the trial court on objections to evidence. But as we understand brief filed here by counsel for appellant, these assignments are expressly waived. In any event, they are not argued and therefore must be treated as waived. Malone v. Protective Life Ins. Co., 237 Ala. 640, 188 So. 233; Keeton v. North Alabama Ry. Co., 222 Ala. 224, 132 So. 35.

Appellant does not contend that Brand failed to comply with the provisions of § 213, Title 26, Code 1940, as amended, which relate to eligibility requirements and which section was discussed in the recent case of Department of Industrial Relations v. Tomlinson, Ala.Sup., 36 So.2d 496.

The one insistence made by appellant is that Brand left his work voluntarily without good cause connected with such work and therefore is disqualified from receiving unemployment benefits under the express terms of subsec. B of § 214, Title 26, Code of 1940, as amended.

Appellant argues that although the separation notice given to Brand shows that he was discharged, such discharge was provoked by his refusal to perform his regularly assigned duties and that, therefore, he in effect voluntarily left his work.

Brand did on the day of his separation refuse to run the machine...