Checker Cab Co. v. Indus. Comm'n

• Decision Date: 09 March 1943
• Citation: 242 Wis. 429,8 N.W.2d 286
• Parties: CHECKER CAB CO. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

242 Wis. 429

8 N.W.2d 286

CHECKER CAB CO.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

March 9, 1943.

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

Affirmed.

This action was begun on July 1, 1940, by the plaintiff, Checker Cab Company, against Voyta Wrabetz, Harry J. Burczyk and C. L. Miller, constituting the Industrial Commission of Wisconsin, and Carl King, defendants, to set aside a decision of the Industrial Commission of Wisconsin finding that the respondent King had not been discharged for misconduct within the meaning of sec. 108.04 (4) (a), Wisconsin Stats.

The case was tried upon the record made before the Industrial Commission, the court found in favor of the plaintiff and from judgment entered setting aside the award, the defendants appeal.

The facts will be stated in the opinion.

Stanley Rector, and Arthur Barber, both of Madison, for appellants.

Clayton S. Schram, of Milwaukee (Patrick J. McCaffrey, of Milwaukee, of counsel), for respondent.

ROSENBERRY, Chief Justice.

The defendant King was employed by the plaintiff company as a cab driver and was in the service of the plaintiff from August 25, 1939, until March 13, 1940, when he was discharged. It appears that he reported late for work on October 10 and October 27, 1939, was absent without leave on November 5 and 6, 1939; was discovered driving recklessly on November 4, 1939, and was guilty of motor idling on December 31, 1939; and on February 10, 1940, he was warned about violation of the company's rules in low flagging,-when a driver who has discharged his passengers does not put up the meter flag, it is possible for him to make other pickups on the same load and collect the fare and not turn it in.

During the period of his employment, King had six accidents, the first on September 16, 1939, when he collided with another car at a street intersection; the second accident occurred on November 13, 1939, as he was pulling in to the curb at the Saint Paul depot when he struck a fire plug with the right front fender; the third on December 8, 1939, the defendant while attempting to park his cab at the Boston Store struck the right front fender of another vehicle, the driver of which was pulling out from the curb; the fourth on January 15, 1940, while he was pulling away from the curb, was struck by another vehicle moving in the same direction, King did not see the other vehicle until the collision occurred; the fifth, on March 1, 1940: King was driving his cab south on Second Street when he collided with another vehicle by skidding into it; and sixth, on March 11, 1940: King had a collision with another vehicle on North Third Street. He was also charged with making a false report with respect to the accident which occurred on March 11, 1940.

The employer denied unemployment benefits. The matter was brought on for hearing before the Appeal Tribunal and from the decision made by that tribunal an appeal was taken to the Industrial Commission. The commission reviewed the evidence and found that it supported the appeal tribunal's findings. This requires us to make an examination of those findings.

The appeal tribunal under the statute is composed of an examiner, an employe and an employer representative. The employe and employer representatives concurred in a finding to the effect that the accidents which King had prior to the accident on March 1, 1940, together with other violations “would have constituted just cause for discharge as misconduct * * *. The accident for which he was discharged happened on March 11, when he was going north on Third Street * * * and it is my opinion that he was not to blame for this accident, and therefore he was not discharged for misconduct under Sec. 108.04 (4) (a) and the initial determination of the deputy should be affirmed and benefits allowed.”

Formal findings were prepared by the chairman of the appeal tribunal in which the delinquencies of King were recited and concluded: “During the period...