Gardere v. Brown

• Decision Date: 21 December 1964
• Docket Number: No. 6276,6276
• Citation: Gardere v. Brown, 170 So.2d 758 (La. App. 1964)
• Parties: Octave GARDERE v. Richard E. BROWN, Jr., Administrator of the Division of Employment Security, Department of Labor, State of Louisiana.
• Court: Court of Appeal of Louisiana

Page 758

170 So.2d 758

Octave GARDERE v.Richard E. BROWN, Jr., Administrator of the Division of Employment Security, Department of Labor, State of Louisiana.

No. 6276.

Court of Appeal of Louisiana, First Circuit.

Dec. 21, 1964.

Rehearing Denied Feb. 3, 1965.

Breazeale, Sachse & Wilson, by Frank P. Simoneaux, Baton Rouge, for appellant.

DeBlieux & Guidry, by Carl A. Guidry, Marion Weimer, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.^*

LANDRY, Judge.

This is an appeal by Crawford Corporation, employer of plaintiff-claimant, Octave Gardere, from the decision of the trial court reversing a ruling of the Louisiana Board of Review and declaring said claimant entitled to unemployment compensation benefits.

Claimant, a handyman assigned to the home of a Mr. Crawford whose precise connection with the aforesaid employer is not disclosed in the record, was discharged January 13, 1964, by Crawford, claimant's immediate superior, for alleged insubordinance, insolence and impertinence in responding to Crawford's injury regarding plaintiff's failure to perform certain duties in accordance with Crawford's instructions communicated to claimant through a maid in Crawford's home.Pursuant to the procedure set forth in the Louisiana Employment Security Law, LSA-R.S. 23:1471 et seq., claimant was held disqualified from receipt of unemployment compensation benefits by administrative process which adverse determination claimant appealed to the Appeals Referee, who, after hearing, determined on evidence adduced that claimant's disqualification was without cause and entered a ruling reversing the administrative disqualification and declaring claimant entitled to benefits under the applicable statute.The employer then appealed the decision of the Appeals Referee to the Board of Review in accordance with LSA-R.S. 23:1630 which, after hearing conducted subsequent to due notice to all concerned, concluded claimant had in fact been discharged for cause and reinstated the initial administrative finding of disqualification.Claimant then invoked judicial review of the decision of the Board of Review as provided for by LSA-R.S. 23:1634 pursuant to which appeal was taken to the Court below.The lower court reversed the finding of the Board of Review and adjudged claimant entitled to benefits under the act.From this latter decision the present appeal was taken to this Court .

The facts of this case as reflected by the testimony taken at the hearing held before the Board of Review, are comparatively simple and undisputed.

Claimant had been in the employ of Crawford Corporation for a period in excess of eight years during which extended period his services in the capacity of handyman and yardman were apparently satisfactory inasmuch as the record reveals no prior instance of alleged inpertinence, insolence, disobedience or failure, neglect or refusal to obey an order of his said employer.

According to the testimony of claimant, on the day preceding his discharge he had been instructed by a maid in the Crawford home to attach license plates to certain automobiles assigned or belonging to the Crawford household.The next day, on being asked by the maid why the licenses had not been installed, claimant informed her he could not perform this chore without first discussing the matter with either Mr. or Mrs. Crawford as he did not know which license was to be affixed to each particular vehicle.Thereupon the maid went upstairs, conveyed some message to the employer who then came down in a rage cursing claimant and demanding to know why claimant had not obeyed the instructions of the maid and stating in effect that the maid had told him claimant refused to install the licenses unless ordered to do so by Mr. or Mrs. Crawford.Claimant further stated he attempted to explain to his employer that he had not refused to install the plates unless personally ordered to do so by Mr. or Mrs. Crawford but rather that he had told the maid he could not do so without instructions as to which vehicle the particular licenses belonged.Mr. Crawford declined to listen to claimant's offer to explain, ordered claimant to 'shut up' and thereupon began cursing claimant.At this juncture plaintiff asked his employer not to curse him but to 'fire him' whereupon Crawford informed plaintiff that plaintiff was fired and ordered plaintiff out of his home.

Neither Mr. Crawford, Mrs. Crawford nor the maid testified at the hearing held before the Board of Review.However, Mr. Ralph H. Sims, Merchandising Director, Crawford Corporation, testified on behalf of the employer giving purely hearsay testimony regarding the incident of claimant's discharge as related to the witness by Mr. Crawford.

Sims' brief and unambiguous testimony setting forth Crawford's version of the circumstances surrounding claimant's discharge, in its entirety, is as follows:

'REFEREE: What is your name and position with the firm, please.

'SIMS: Ralph H. Sims, Merchandising Director, Crawford Corp.

'REFEREE: What do you know of this matter?

'SIMS: I know exactly what was related to me by Mr. Crawford, who was Octave's direct supervisor.Mr. Crawford told me that he came down one morning and said to Octave, did you put the tags on the car, and Octave said, no, and a few more words.And Mr. Crawford confesses to using a bit of profanity at that point.Not cursing Octave, but just angry that he hand't done what he had been told to do.And he says that Octave said you can't cuss me, or something to that effect, and a few more words followed, probably angry on both sides, and again, Mr. Crawford probably said something like damn it why don't you do what you are told to do, and Octave, again, according to Mr. Crawford, said you can't cuss me, you can fire me, but you can't cuss me.And Mr. Crawford said oaky, then, there is the door.Get out and don't come back.Now that's about it as it was told to me by Mr. Crawford.

'REFEREE: To your knowledge, Mr. Sims, did this man work quite a while for Mr. Crawford?This was the first--I mean, I am asking you if you had any other knowledge--this is the first time the claimant ever had any difficulty with Mr. Crawford?

'SIMS: I know that Octave has worked for Mr. Crawford for some time.I don't know whether there has been any difficulty before or not.I haven't heard of any.'

In his brief before this Court able counsel for the employer maintains the trial court erred in reversing the decision of the Board of Review inasmuch as the jurisprudence is well established to the effect the findings of the Board, if supported by sufficient evidence and in the absence of fraud are conclusive on the Courts.In this regard esteemed counsel contends the record contains ample evidence to support the Board's findings and the trial court erred in holding otherwise.Likewise it is contended the trial court erred in failing to recognize and apply the settled legal principle that where, in cases such as this, the evidence adduced before the Board is susceptible of more than one construction, the interpretation adopted by the Board must prevail.In this latter connection it is argued the law is settled to the effect judicial review does not permit weighing of the evidence, deciding the inferences to be drawn therefrom, re-evaluating the evidence as found by the Board of Review or substituting the Court's judgment for that of the Board.Counsel further contends claimant's testimony alone is sufficient to support the Board's findings.

On the other hand, claimant maintains the burden is on the employer to establish the employee's disqualification and although the courts must accept the Board's findings of fact it is nevertheless the obligation and function of the court to determine whether, under the facts found by the Board of Review, claimant is or is not entitled to receipt of benefits provided for by the applicable statute.

As argued by astute counsel for appellant employer herein, in cases of judicial review of the determinations of the Board of Review as provided for in the applicable statute, the factual determinations of said Board are binding and conclusive upon the courts if supported by sufficient evidence and fraud is not present.LSA-R.S. 23:1635;McGinnis v. Moreau, La.App., 149 So.2d 188;Barber v. Lake Charles Pipe & Supply Co., La.App., 148 So.2d 326;Fruchtzweig v. Southern Specialty Sale Company, La.App., 161 So.2d 374.

We are likewise in agreement that judicial review of the findings of the Board of Review does not permit weighing the evidence nor does it authorize the courts to decide what inferences are to be drawn from the evidence or re-evaluate the evidence or substitute the Court's judgment on the facts for that of the Board.Barber v. Lake Charles Pipe & Supply Co., La.App., 148 So.2d 326.

We are not in agreement, however, with the contention of counsel for appellant to the effect that the trial court erred if it found as a fact claimant was insubordinate, the discharge was nevertheless unjustified as such conclusion is obviously contrary to the finding of the Board of Review which is binding upon the judiciary.To hold as learned counsel for appellant urges in this regard is tantamount to ruling the decisions of the Board of Review are binding upon the Courts as to both factual and legal issues.Such, however, is not and has never been the jurisprudence of this state.On the contrary, we cite with approval the following observations appearing in Turner v. Brown, La.App., 134 So.2d 384:

'Under the statute, the courts must accept the factual findings of the administrative agency if supported by sufficient evidence.But the legislature has also provided for judicial review of questions of law affecting the administrative determinations, which review...