Boynton Cab Co. v. Schroeder
| Decision Date | 11 March 1941 |
| Citation | 296 N.W. 642,237 Wis. 264 |
| Parties | BOYNTON CAB CO. v. SCHROEDER et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
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, John L. Schroeder and Industrial Commission, to set aside the allowance of unemployment benefits under Ch. 108, Stats., to be paid to Schroeder, a discharged employe 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 respondents.
Padway, Goldberg & Tarrell, of Milwaukee, and R. M. Stroud and E. L. Wingert, both of Madison, amicus curiae.
The Boynton Cab Company appeals from a judgment affirming a decision of the IndustrialCommission by which it adopted and affirmed a decision by an Appeal Tribunal designated under sec. 108.09(3), Stats., which allowed unemployment benefits under Ch. 108, Stats., to the defendant John L. Schroeder. He had been employed as a taxicab driver by appellant from December 6, 1938, until he was discharged on March 7, 1939. He filed a claim for unemployment benefits, and in response to an inquiry made by the Commission under sec. 108.09(1), Stats., appellant rejected the claim by a letter stating,
“John L. Schroeder was discharged on March 7, 1939, for his entire bad record of violations of company rules; had been given many warnings for these violations which are as follows:
“1939: January 8, warned about loafing on duty and hanging around night clubs instead of tending to business. ***
A deputy designated by the Commission under sec. 108.09(2), Stats., investigated the disputed claim and made an “initial determination” that Schroeder's discharge was not for such misconduct as to bar him under subd. (a) of sec. 108.04(4), Stats., from receiving unemployment benefits. Thereupon, under and in accordance with sec. 108.09(3) to (5), Stats., appellant requested a hearing on the disputed claim; and the Commission designated an Appeal Tribunal, which held a hearing and, upon the sworn testimony received on a trial de novo, made findings of fact and affirmed the deputy's “initial determination” and allowed benefits accordingly. Upon appellant's petition the Commission reviewed the record made before the Tribunal, and adopted and affirmed the Tribunal's finding and decision, including the allowance of benefits. Appellant then bought an action in the circuit court to set aside the Commission's determination and, upon the entry of judgment affirming the determination, this appeal was taken from the judgment.
[1] The only error assigned by appellant is that the court erred in affirming the Commission's findings that the failure of Schroeder to conform to the standards of earnings set by appellant, and his violation of appellant's rules with respect to “checking in short” and leaving his cab unattended on the public streets, did not constitute misconduct within the meaning of sec. 108.04(4) (a), Stats. But in connection therewith appellant also claims that, because there was evidence which established that Schroeder left his taxicab unattended on the streets in violation of appellant's rules, the evidence does not sustain the Commission's findings that he was not discharged for misconduct within the meaning of sec. 108.04(4) (a), Stats. In relation to this claim it appears from the record that appellant did not specify in its rejection of Schoreder's claim that he was discharged for leaving his cab unattended on the streets; and no finding on that particular subject was made by the Tribunal. There was evidence to the following effect: That on January 8, 1939, Schroeder parked his cab from 4 P. M. until 4:30 A. M. at the Terrace Cafe, a night club; that appellant's rules forbade the parking of a cab on the streets by an employe except while he was eating, and Schroeder knew of the rule; but that he claimed he was ill that evening and went to his room in a nearby house and fell asleep, and because of this occurrence his cab remained on the street until 4:30 A. M. Under this evidence, it was within the province of the Tribunal to find either that Schroeder intentionally left the cab unattended on January 8, 1939, because he loafed and hung around a night club, or that it was left on the street because he had become ill and fallen asleep at his room. The Tribunal's statement in its findings that, “It was not established that the poor record of the employe was due to loafing or that he failed to perform...
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