Boynton Cab Co. v. Neubeck

• Decision Date: 11 March 1941
• Parties: BOYNTON CAB CO. v. NEUBECK et al.
• Court: Wisconsin Supreme Court

237 Wis. 249

296 N.W. 636

BOYNTON CAB CO.

v.NEUBECK et al.

Supreme Court of Wisconsin.

March 11, 1941.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

Action brought by Boynton Cab Company against the defendants, Walter Neubeck and the Industrial Commission, to set aside the allowance of unemployment benefits under Ch. 108, Stats., to be paid to Neubeck, as a discharged employee of plaintiff. Upon a trial of the issues under the pleadings the court filed findings of fact and conclusions of law upon which judgment was entered affirming the Commission's award. Plaintiff appealed from the judgment.Dougherty, Arnold & Kivett, of Milwaukee (Suel O. Arnold and Michael H. Keelan, both of Milwaukee, of counsel), for appellant.

Stanley Rector and Arthur Barber, both of Madison, for respondent Industrial Commission.

Padway, Goldberg & Tarrell, of Milwaukee, and R. M. Stroud and E. L. Wingert, both of Madison, amici curiae.

FRITZ, Justice.

The Boynton Cab Company appeals from a judgment affirming a decision of the Industrial Commission by which it adopted and affirmed a decision of an Appeal Tribunal designated under sec. 108.09(3), Stats., which allowed unemployment benefits under Ch. 108, Stats., to be paid to Walter Neubeck. He had been employed as a taxicab driver by appellant from January 6, 1939, until he was discharged on February 25, 1939. He filed a claim for unemployment benefits, and pursuant to an inquiry made by the Commission under sec. 108.09(1), Stats., appellant rejected the claim by a letter stating,

“Walter Neubeck was discharged on 2/25/29 for his entire bad record of violations of company rules, had been given many warnings for these violations which are as follows:

“1939-1/23, made a trip from N. 38th St. to N. 25th St., charged passenger 40¢, only turning in 25¢ to the company. A new man, was given warning, made to pay the balance and let go back to work.

“2/5, talked to and warned about low earnings per mile and low bookings. (Withdrawn at hearing)

“Accidents: 2-17, 2-25, 2-23.”

Under sec. 108.09(2), Stats., the Commission designated a deputy who made an “initial determination” that Neubeck's discharge was not for such misconduct as to render him ineligible for benefits by reason of the provision in subd.(a) of sec. 108.04(4), Stats. Pursuant to appellant's request for a hearing in relation to the disputed claim, the Commission designated an Appeal Tribunal, which upon the testimony taken at a hearing held under sec. 108.09(3) to (5), Stats., filed findings of facts and a decision affirming the “initial determination” and allowing benefits accordingly. Upon a review thereof by the Commission, it adopted and affirmed the Tribunal's finding and decision. Appellant then brought an action in the circuit court to set aside the Commission's determination and award of unemployment benefits and upon the entry of judgment affirming the decision of the Commission and the Tribunal, this appeal was taken from the judgment.

The only error assigned by appellant is that the court erred in refusing to vacate and set aside the Commission's determination and award on the ground that it was not supported by credible evidence. In relation to Neubeck's accidents and record of violations of appellant's rules, because of which it claims he was guilty of such misconduct as to bar him under sec.108.04(4) (a), Stats., from receiving unemployment benefits, there was evidence on the hearing before the Tribunal in respect to the rules by which appellant's drivers were required to promptly report all accidents, and also in respect to lay-offs in employment for various different kinds of accidents. Neubeck had three minor traffic accidents during the eight weeks of his employment by appellant. He did not report the first accident on February 17, which did not result in any material damage, but as to which the appellant was notified by the driver of the other car in the collision. Neubeck was not laid off then. He promptly reported a collision on February 23, but he did not state, as required by appellant's rule, that there had been personal injury. He claims he had no knowledge thereof until appellant was notified about the injury on March 4 by an attorney, who presented a claim therefor which, including $12.50 for automobile repairs, was compromised at $90. Again Neubeck was not laid off but was told he would be discharged if he had another accident. Appellant's foreman testified that if he had known of the personal injury he would have discharged Neubeck on February 23. The third accident happened on February 25 while Neubeck was driving down a ramp in appellant's garage and the car skidded down and into the street where it collided with another automobile. There was ice on the ramp and Neubeck claims that the clutch stuck. The foreman took him to the superintendent and recommended dismissal, and he was then discharged. In respect to these accidents and the reporting of them the Tribunal found: “It appeared that the employee was partly responsible for the accidents. However, in view of the hazards and responsibilities of his employment, the employee's record of accidents did not show an unreasonable and improper course of conduct from which could be imputed a lack of showing proper regard for the employer's interests.”

In relation to the charge that Neubeck turned in only 25 cents of 40 cents which he charged a passenger, there was evidence to the following effect on the hearing before the Tribunal. On January 23 Neubeck collected 40 cents as fare from the passenger, but reported only 25 cents on a trip sheet, which appellant's rules required him to keep. The passenger telephoned to the appellant's office and claimed that there was an overcharge of 15 cents. When appellant's supervisor spoke to Neubeck about his having collected 40 cents, he claimed that he had forgotten to enter that amount on the trip sheet and to turn in the 15 cents; and also claimed that he thought that the additional charge of 15 cents was proper because he had crossed into a second zone. He asked the supervisor whether he should return the 15 cents, and gave the money to the supervisor when he replied, “You better give me 15 cents and I will go to that party and return the 15 cents.” The supervisor then gave Neubeck a “hold slip”, which required him to report to the superintendent before taking out a cab, and the superintendent apparently accepted Neubeck's explanation that the overcharge was due to a mistake, and that his failure to turn in the 15 cents was due to oversight and inadvertence on his part. Neubeck does not appear to have been accused of dishonesty at that time; and he was not then discharged, although the overcharge was made within the probationary period of four weeks, during which he could have been discharged without becoming entitled to unemployment benefits. The Tribunal found, in relation to the overcharge and withholding of 15 cents, that, “About three weeks after the employee was hired he withheld part of a fare. When the matter was brought to his attention he explained that he had done so inadvertently. The employer accepted his explanation at the time and nothing of a similar nature occurred at any time during the balance of his employment.”

And in relation to this transaction, as well as Neubeck's conduct in respect to the three accidents and his reports thereof, the Tribunal found that Neubeck “was not discharged for misconduct connected with his employment within the meaning of section 108.04(4) (a) of the statutes.”

[1] In sofar as the overcharge and withholding of the 15-cent item is concerned, the evidence reasonably admitted of the Tribunal's findings that the appellant accepted Neubeck's explanation at the time of the transaction in January 1938, and that nothing of a similar nature occurred during the balance of his employment. These facts and appellant's retention of Neubeck in its employment for four weeks thereafter warrant the Tribunal's determination that the discharge on February 25 was not for any misconduct in connection with the 15-cent item. Likewise, the evidence admitted of the Tribunal's finding that, although Neubeck was partly responsible for the three minor accidents, nevertheless, in view of the hazards and responsibilities of his employment at the time, his “record of accidents did not show an unreasonable and improper course of conduct from which could be imputed a lack of showing proper regard for the employer's interests.”In this connection it is of significance that Neubeck's failures to report the first accident, and also the personal injury of which he did not know when he reported the second accident, were apparently not considered by appellant to be such serious violations of its rules as to warrant a lay-off at the times it learned of them. Under these circumstances neither the violations nor the accidents in question compel the conclusion that the Tribunal erred in determining that Neubeck's record of the accidents did not show an unreasonable and improper course of conduct because of which there could be imputed a lack of showing proper regard for the appellant's interests.

However, notwithstanding the Tribunal's determination in the respects stated above, appellant contends that if Neubeck was negligent in the operation of the taxicab and was therefore partly responsible for the accidents and was discharged therefor, then his discharge was for misconduct within the meaning of that term as used in subsec. (4) (a) of sec. 108.04, Stats., which provides that “an employe's eligibility, for benefits *** shall be barred for any week of unemployment completed after: (a) He has been discharged by the employer for misconduct connected with his employment ***.” In support of this contention it is argued that, “if an employer discharges an employee for negligence,he discharges such employee for misconduct. The term negligence...