Kessler v. Industrial Commission

• Decision Date: 27 April 1965
• Citation: 27 Wis.2d 398,134 N.W.2d 412
• Parties: Emil KESSLER, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Wisconsin and Kickhaefer Manufacturing Co., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 412

134 N.W.2d 412

27 Wis.2d 398

Emil KESSLER, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Wisconsin and Kickhaefer

Manufacturing Co., Defendants-Respondents.

Supreme Court of Wisconsin.

April 27, 1965.

Stephen J. Hajduch, Milwaukee, for appellant.

Arnold J. Spencer, Madison, for respondent Industrial Commission.

HALLOWS, Justice.

The plaintiff recognizes the findings of the industrial commission cannot be set aside on appeal in the absence of fraud if there is sufficient credible evidence or reasonable inferences which support the findings. Grant County Service Bureau, Inc. v. Industrial Comm. (1964), 25 Wis.2d 579, 131 N.W.2d 293; Cooper's, Inc. v. Industrial Comm. (1962), 15 Wis.2d. 589, 113 N.W.2d 425; and Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 69 N.W.2d 573, 70 N.W.2d 576. The plaintiff also recognizes the equally well-established rule that where the evidentiary facts are not in dispute but permit of different inferences the drawing of one of such inferences is a finding of fact within the province of the industrial commission. Gant v. Industrial Comm. (1953), 263 Wis. 64, 56 N.W.2d 525. This court has held, however, and the plaintiff rests his case on the proposition that if the evidentiary facts are not in dispute and permit of only one reasonable inference, the drawing of that inference is a question of law and not of fact. Brown v. Industrial Comm. (1960), 9 Wis.2d 555, 101 N.W.2d 788; Gregory v. Anderson (1961), 14 Wis.2d 130, 109 N.W.2d 675, 89 A.L.R.2d 1081; Cutler-Hammer, Inc. v. Industrial Comm. (1961), 13 Wis.2d 618, 109 N.W.2d 468.

It is contended on this record by the plaintiff that only one reasonable inference can be drawn, namely, that his quitting of his job was with good cause attributable to the employer. The 'compelling personal reason' basis was not stressed below or on this appeal and in fact is based on identical facts constituting the alleged good cause attributable to the employer.

Good cause attributable to the employer as a basis for unemployment compensation under sec. 108.04(7)(b), Stats., has been the subject of prior decisions of this court. In Western Printing & Litho. Co. v. Industrial Comm. (1951), 260 Wis. 124, 50 N.W.2d 410, we stated the resignation must be occasioned by 'some act or omission by the employer' constituting a cause which justifies the quitting. Good cause for quitting attributable to the employer as distinguished from discharge must involve some fault on his part and must be real and substantial. 81 C.J.S. Social Security and Public Welfare § 167, pp. 253-256. A transfer or shift in jobs occasioned by decreased work in an assembly department due to the reduction in demand for defense production is not a good cause for quitting even though there would be a temporary reduction in salary, but the employee's seniority would be unaffected. Dentici v. Industricl Comm. (1953), 264 Wis. 181, 58 N.W.2d 717. Similarly a transfer in job status necessitated by lack of work in a welding department which shift would reduce the salary but not affect seniority was not a good cause for quitting in Roberts v. Industrial Comm. (1957), 2 Wis.2d 399, 86 N.W.2d 406. In that case we pointed out that one of the purposes of the unemployment compensation statute was to minimize the loss of income from unemployment due to the fault or the misfortune of the employer but the statute was not intended to provide relief when reasonable work was available which the employee can but will not do.

The plaintiff claims the record shows that when he commenced his employment as plant superintendent in the small manufacturing plant of the defendant he devoted about 75 percent of his time to plant duties and 25 percent to so-called paper work; that over the years the paper work demanded considerably more time and encroached on his plant supervision. Plaintiff was in charge of safety in the plant. Several serious accidents occurred because of the failure of machine operators to use safety devices. In 1962 the president wrote a memo to the plaintiff which in effect held the plaintiff responsible for the lack of safety practices and threatened discharge if another serious accident occurred. The plaintiff also claims a lack of communication had developed between him and the president.

Sometime in 1960 a Mr. Norton was hired as sales manager and on November 1, 1962, he was promoted to vice-president in charge of sales and production, thus making him in effect the plaintiff's superior. On November 3rd at the plaintiff's request a conference was held with the president. During this conference the plaintiff was told he would receive no further bonuses. Bonuses had been paid the plaintiff and nonproduction employees since 1958 in varying amounts. They were not a part of the salary contract but were paid at the discretion of the board of directors. It was after...