Employment Sec. Bd. of Md. v. LeCates

• Decision Date: 18 November 1958
• Docket Number: No. 39,39
• Citation: Employment Sec. Bd. of Md. v. LeCates, 145 A.2d 840, 218 Md. 202 (Md. 1958)
• Parties: EMPLOYMENT SECURITY BOARD OF MARYLAND and John H. Dulany & Sons v. Linwood M. LeCATES.
• Court: Maryland Court of Appeals

Page 202

218 Md. 202

145 A.2d 840

EMPLOYMENT SECURITY BOARD OF MARYLAND and John H. Dulany & Sons v. Linwood M. LeCATES.

No. 39.

Court of Appeals of Maryland.

Nov. 18, 1958.

James N. Phillips and J. Robert Brown, Baltimore (C. Ferdinand Sybert, Atty. Gen., Bernard S. Melnicove, Sp. Asst. Atty. Gen., and E. Dale Adkins, Jr., Salisbury, on the brief), for appellants.

No brief and no appearance for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This appeal involves the payment of benefits under the provisions of the Unemployment Insurance Law, Code 1951, art. 95A, § 1 et seq. to an employee who had been discharged by his employer. The Circuit Court for Wicomico County reversed the findings of the Employment Security Board of Maryland and remanded the case for further action, which, in effect, required the payment of unemployment compensation to the employee. The Board appealed. The employee did not participate in the appeal to this Court.

Linwood M. LeCates (the employee or claimant) was employed by John H. Dulany & Sons (the employer) as a supervisor in its food processing plant in Fruitland at a salary of $65 per week. The employee at the time he was promoted to supervisor was told by the plant manager that he 'would have to mind his p's and q's throughout his stay with the company.' Until the occurrence of the incident which brought about his discharge the employer considered the employee to be a responsible person.

On a prior occasion the employee had borrowed and used a company truck and returned it without incident. But on Saturday, November 10, 1956, he took a truck from the premises of his employer for his personal use without permission. It was customary for the employer to keep several motor vehicles parked within an enclosed area in the rear of the plant yard. A watchman, who was on duty on weekends had authority to permit the use of the trucks. The truck the employee used had been parked near a back gate out of sight of the watchman. His supervisory duties entitled him to possess a key. He used it to gain entrance to the back gate. The employee's license to operate a motor vehicle had been suspended or revoked, and he stated he thought the plant officials should have been aware of this fact since it had been published in the local newspapers. While driving the truck he became involved in an accident on a street in Salisbury. He did not report the accident promptly to the watchman, his employer or the police. Instead he left the truck parked on the outside of the enclosed area back of the plant where it was found by the watchman, who did not know any one had planned to borrow it. Upon examining the truck the watchman discovered bits of trash with the employee's name on them, indicating that the employee had operated the truck. The truck had been damaged. The watchman notified the company representative in charge of the trucks immediately. On Monday, November 12, 1956, the representative, in company with the State Police, went to the home of the employee to determine who had used the truck and to discuss the nature of the accident. The employee did not discuss the matter with the representative, but he did report the accident when he went on duty at 6 p. m. the same day. The State Police charged the employee with driving without a license and with leaving the scene of the accident without identifying himself and he subsequently forfeited collateral in the sum of $110.75. In response to a question by the referee concerning notice to the company, the employee stated, 'I should have done it right then; but I just slept, that's all, I figured I'd report it when I went to work.' After his dischage, the employee filed a claim for unemployment compensation.

The referee found that the claimant did not voluntarily leave work without good cause within the meaning of Code (1951) art. 95A, § 5(b), and that he was discharged for deliberate and willful misconduct connected with his work within the meaning of § 5(b), supra. The Board affirmed the referee, and the claimant was denied benefits from November 12, 1956, until such time as he became reemployed and earned ten times his weekly benefit and thereafter became unemployed through no fault of his own. The claimant appealed to the circuit court.

The pertinent sections of the Unemployment Insurance Law [Code (1951) art. 94A], with which we are presently concerned, provide:

[Section 5. Disqualification for Benefits. ¹

'An individual shall be disqualified for benefits--(b) For any week in which his unemployment is due to his leaving work voluntarily without good cause, or to his actual or threatened deliberate and wilful misconduct connected with his work, if so found by the Board. Such disqualification shall continue until such individual has become reemployed and has earnings therein equal to at least ten (10) times his weekly benefit amount.' (Emphasis added.) [Section 6. Claims for Benefits.]

'(h) (Judicial Review). * * * In any judicial proceeding under this section, the findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of * * * [the] court shall be confined to questions of law. * * *' (Emphasis added.)

The Board presents two questions on this appeal. Actually they are but separate parts of the same question. Whether the findings of the Board as to the facts are supported by the facts necessarily must depend on whether the acts of the claimant constituted deliberate and willful misconduct connected with his work. In fact, the real question involves (i) consideration of the meaning of 'deliberate and wilful misconduct' and (ii) a determination of whether such conduct was in law 'connected with his work.'

In unemployment conpensation cases we have consistently held, as the law requires, that the findings of the Board as to the facts are conclusive, if there is evidence to support such findings. The court's jurisdiction, in such cases, is specifically limited to questions of law. Mitchell, Inc. v. Md. Emp. Sec. Bd., 1956, 209 Md. 237, 121 A.2d 198; Maryland Employment Security Board v. Poorbaugh, 1950, 195 Md. 197, 72 A.2d 753; Tucker v. American S. & Ref. Co., 1947, 189 Md. 250, 55 A.2d 692; Brown v. Md. Unemp. Comp. Board, 1947, 189 Md. 233, 55 A.2d 696. See also Franke v. Unemployment Compensation Board of Rev., 1950, 166 Pa.Super. 251, 70 A.2d 461. In stating the material facts, the court should state as facts such evidence as is most favorable to the findings of the Board. Steamship Trade Ass'n of Baltimore v. Unemp. Comp. Bd., 1948, 190 Md. 215, 27 A.2d 818; Trucker v. American S. & Ref. Co., supra. Moreover, in reviewing the facts, a court is confined to determining whether there is evidence to support the findings of the Board, and in the absence of fraud, that finding, as stated above, is conclusive. Brown v. Md. Unemp. Comp. Board, supra. But, if the facts and the inferences to be drawn therefrom are undisputed, as they are in this case, then a construction of the statute, as applied to such indisputed facts, is, of course, a question of law. Mitchell, Inc. v. Md. Emp. Sec. Bd., supra, and cases therein cited; Nance v. Gall, 1946, 187 Md. 656, 50 A.2d 120, 51 A.2d 535.

(i) Deliberate and Willful Misconduct.

The misconduct for which the claimant was discharged and subsequently denied benefits involved a series of events resulting from the unauthorized use of a company truck. He had an accident while using the truck, and returned it to a point outside of the plant of his employer. He did not report the accident until he returned to work two days later. In the meantime, a company representative, accompanied by the State Police, went to the home of the claimant, who would not discuss the matter with the representative, although the record does not show the reason. He was charged by the State Police with operating a motor vehicle without a license and with leaving the scene of an accident without identifying himself and subsequently forfeited the collateral he had posted. He was not charged with unauthorized use. The record does not disclose the exact nature of the duties of the claimant when he was working, but he had been employed in a supervisory capacity, indicating that he must have been some sort of an overseer, inspector or superintendent. Moreover, when he was promoted to the position of a supervisor he was warned that he would have to mind his 'p's and q's.' It is not disputed that the accident occurred off of the employer's premises at a time when the claimant was not actually on duty.

When is the misconduct of an employee 'deliberate and wilful'? At the outset we should observe that the legislature, by Chapter 496 of the Acts of 1947 [1947 Cum.Supp. art. 95A § 5(b) and (c)] intended to distinguish between 'deliberate and wilful misconduct' and 'misconduct' of a lesser degree. It is also proper to note that what is 'deliberate and wilful misconduct' will vary with each particular case. Here we 'are not looking simply for substandard conduct * * * but for a wilful or wanton state of mind accompanying the engaging in substandard conduct. * * * Turning from the requisite state of mind to the type of act or failure to act necessary for 'misconduct' we are necessarily thrown into a shifting framework of reference. * * * [T]he 'wrongness' of the conduct must be judged in the particular employment context. * * * [C]ertain conduct will be so flagrant that indulging in it will undoubtedly be 'misconduct' whether or not a specific rule prohibiting it has been expressly formulated and posted or otherwise announced to the employees.' Sanders Disqualification For Unemployment Insurance, 8 Vand. L. Rev. 307, 334 (1955).

In 81 C.J.S. Social Security and Public Welfare § 162 'deliberate' and 'wil...