Echols v. Michigan Employment Sec. Commission

• Decision Date: 13 September 1966
• Docket Number: No. 1,No. 604,604,1
• Citation: 4 Mich.App. 173,144 N.W.2d 666
• Parties: Bruce ECHOLS, Plaintiff-Appellant, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION and John Kraus, Defendants-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 666

144 N.W.2d 666

4 Mich.App. 173

Bruce ECHOLS, Plaintiff-Appellant, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION and John Kraus Defendants-Appellees.

Cal. No. 604.

Court of Appeals of Michigan, Division No. 1.

Sept. 13, 1966.

Rehearing Denied Oct. 26, 1966.

Henry Glicman, Deland, Fla., Stephen I. Schlossberg, John A. Fillion, Bernard F. Ashe, Jordan Rossen, Detroit, of counsel, for appellant.

Edward J. Setlock, Asst. Atty. Gen., Detroit, for Michigan Employment Security Commission.

Philip J. Neudeck, Detroit, for Kraus.

Before GILLIS, P.J., and HOLBROOK and McGREGOR, JJ.

McGREGOR, Judge.

The issue here is whether or not a taxi driver who is unemployed because he has lost his license to drive is entitled to unemployment compensation. The employment security appeal board unanimously held as follows:

'This matter came on for review by the Appeal Board on February 14, 1964. The employer appealed from a Referee's decision which held that the claimant was not disqualified for benefits and was further eligible for benefits under section 28(c) of the Act if otherwise eligible.

'The facts in this matter are not in dispute. The claimant was hired as a cab driver on November 2, 1960, and assigned to Jack Kraus as his employer. He continued in such occupation until August 31, 1963. On August 13, 1963, the claimant was notified to report to the Secretary of State's office for an investigation and hearing on why his license to operate a motor vehicle should not be revoked for an accumulation of excessive points under the system employed by such agency. On September 1, 1963, the claimant was formally notified that his license had been revoked for ninety days. Inasmuch as the claimant needed an operator's license to pursue his occupation of a cab driver, he no longer reported to the employer's establishment, but instead, filed an application for unemployment benefits on September 11, 1963.

'The first issue in this matter is whether or not the claimant voluntarily left his work on September 1, 1963, without good cause attributable to the employer so as to be disqualified for benefits under § 29(1)(a)(1) of the Act. The secondary issue is whether or not the claimant, if not disqualified, was able and available to perform full time work so as to be eligible for benefits under § 28(c) of the Act.

'The Referee in this matter has held that the claimant did not as a matter of fact voluntarily leave his work. In so holding the Referee found that the claimant's separation fell within the doctrine of a 'constructive voluntary leaving' and, since such doctrine has not been accepted by the Supreme Court of this State, the claimant could not be disqualified from receiving benefits under § 29(1)(a)(1) of the Act.

'The Appeal Board cannot agree with certain findings of the Referee and can also not agree with his ultimate holding that the claimant could not be disqualified. The referee stated in his decision that the 'employer therefore was unable to continue him in employment'. It is the opinion of this Appeal Board that it was the claimant, through the loss of his operator's license, who was unable to continue in employment. The employer at all times would have retained the claimant if he had been able to drive a taxi. We believe that the claimant's separation in this matter was caused solely by his loss of certain prerequisites which were necessary for his continued employment. At the time the claimant entered into a contract of hire with this employer, a condition precedent was imposed that the claimant must at all times have a license to operate a motor vehicle. This condition is analogous to the prerequisite that a messenger boy have a bicycle to make his deliveries or that a skilled laborer possess certain specialized tools in order to properly perform his chosen occupation. The Appeal Board has ruled on several occasions that the loss of a claimant's prerequisites for continued employment, especially through his own negligence, is a voluntary leaving without good cause attributable to the employer. The most recent decision by the Appeal Board was in the matter of the Claim of Steve Leslie, Appeal Docket No. B62--3769--29019. In that matter, the claimant, who was a fence erector, was hired with a condition precedent that he must furnish his own truck to report to the various job sites. The claimant lost his means of transportation to the various sites through no fault attributable to the employer and, when he could no longer transport his equipment to the job sites, h...