Krisman v. Unemployment Compensation Com'n

• Decision Date: 01 June 1943
• Docket Number: 38278
• Parties: Harry E. Krisman, doing business as Krisman-Frey Jewelry Company, Appellant, v. Unemployment Compensation Commission of Missouri, Elmer J. Keitel, Sr., Chairman, Andrew J. Murphy, Sr., and Harry P. Drisler, Members, and Ida Gershen, Claimant
• Court: Missouri Supreme Court

171 S.W.2d 575

351 Mo. 18

Harry E. Krisman, doing business as Krisman-Frey Jewelry Company, Appellant, v. Unemployment Compensation Commission of Missouri, Elmer J. Keitel, Sr., Chairman, Andrew J. Murphy, Sr., and Harry P. Drisler, Members, and Ida Gershen, Claimant

No. 38278

Supreme Court of Missouri

June 1, 1943

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed.

Joseph Boxerman and Louis E. Zuckerman for appellant.

Claimant's appeal from the decision of the claims deputy to the appeal tribunal and the appeals referee was not taken within five days after she had actual notice of the decision of the claims deputy; and such appeal having been taken out of time the appeals tribunal, the appeals referee and the Commission were without jurisdiction to determine such appeal, and the circuit court erred in failing and refusing to reverse the final decision of the Commission which affirmed the finding and decision of the appeals referee on such appeal. Sec. 9432 (b), R. S. 1939; State ex rel. May Dept. Stores Co. v Haid, 38 S.W.2d 44; 3 C. J., pp. 1039, 1040, 1043, 1074, secs. 1031, 1032, 1035, 1083. (2) The appeals referee was without jurisdiction to determine claimant's appeal from the decision of the claims deputy after its withdrawal by her on September 26, 1940; and the court erred in failing and refusing to reverse the final decision and finding of the Commission which affirmed the decision of the appeals referee after he had lost jurisdiction thereof by its withdrawal. Secs. 9432 (c), 9432 (f), R. S. 1939; Better Built Homes & Mtge. Co. v. Nolte, 249 S.W. 743; State ex rel. v. Caulfield, 62 S.W.2d 819; Piatt v. Heim & Overly Realty Co., 117 S.W.2d 327; 4 C. J. S., p. 2008, secs. 1387, 1388; 4 C. J. S., p. 124, sec. 42; State ex rel. State Highway Comm. v. James, 115 S.W.2d 225. (3) The judgment of the circuit court should be reversed because the final decision and finding of the Commission is not sustained by sufficient substantial, competent and legal evidence, and the court erred in affirming such decision and finding of the Commission. Secs. 9432 (b), 9432 (c), R. S. 1939; A. J. Meyer & Co. v. Unemployment Compensation Comm., 152 S.W.2d 184; Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 57 S.Ct. l. c. 872; Kellogg v. Murphy, 164 S.W.2d 285; Hartwig-Dischinger Realty Co. v. Unemployment Comp. Comm., 168 S.W.2d 78; Murphy v. Doniphan Tel. Co., 147 S.W.2d 616. (4) Appellant here was not an "employer" within the meaning of the Act, and the finding of the Commission that appellant and the other corporations were a single employing unit subject to the Act, and the affirmance of such finding by the court was erroneous. Sec. 3 (h) (1) (4), Unemployment Compensation Act, as Amd. 1939; Sec. 9423 (h) (1) (4), R. S. 1939; Murphy v. Hurlbut Und. & Emb. Co., 142 S.W.2d 452; 42 U.S.C. A., sec. 1197. (5) The court erred in affirming the finding and decision of the Commission assessing increased benefits in favor of claimant, because her claim was not made against Krisman-Frey Jewelry Co., as her last employer, and there was no showing in evidence that she was entitled to any benefits under the Act from her last employer, Commercial Letter Co. Sec. 9427 (C) (1), R. S. 1939; Hartwig v. Unemployment Comp. Comm., 168 S.W.2d 78. (6) The finding and decision of the Commission that appellant here owned and controlled Krisman-Frey Jewelry Co., Gift Chest Stores and Millard's, and that he exercised control and conducted and managed the business of these three companies, and that these three companies are controlled by the same interest and are considered as one employing unit in Sec. 3 (h) (4) of the Act, and the affirmance of such finding and decision by the circuit court was erroneous and denied to this appellant the equal protection of the laws, and deprived appellant of his property without due process of law, in violation of Section 30, of Art. II, Const. of Mo., and Art. 4, Sec. 2, Par. 1, of the Const. of the U.S., as supplemented by the first section of the 14th Amendment of the Constitution of the United States, and said Section 3 (h) (4) of the Unemployment Compensation Act of Missouri, as amended in 1939, is null and void, for that it attempts to impose upon this appellant as an individual who did not employ 8 persons on a portion of a day in each of 20 weeks in 1938 and 1939, the obligation to pay an excise tax imposed by said section on employers who employed 8 or more persons for a portion of a day in each of 20 weeks in 1938 and 1939. Sec. 3 (h) (4), Unemployment Compensation Act, Amd. 1939; Sec. 30, Article 2, Const. of Missouri; Art. 4, Sec. 2, Par. 1, Const. of the U.S.; Sec. 1, 14th Amd., Const. of the U.S.; Kellogg v. Murphy, 164 S.W.2d 285; Murphy v. Doniphan Tel. Co., 147 S.W.2d 616.

George A. Rozier, Chief Counsel, and Edward D. Summers, Assistant Counsel, for respondents; Harry G. Waltner, Jr., of counsel.

(1) Claimant's appeal from the decision of the claims deputy was taken within the time required by statute. Section 9432 (b), R. S. 1939; Pevesdorf v. Union Electric L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939; Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 555; State ex rel. Ball v. State Board of Health, 325 Mo. 41, 26 S.W.2d 773; Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575. (2) Claimant's filing of a withdrawal of her appeal, when not approved by the Referee or by the Commission could not operate to deprive the Referee, the Commission or the Courts of jurisdiction in this case. Secs. 9432 (c), 9432 (f), 9427 (C), R. S. 1939; State ex rel. Big Bend Quarry Co. v. Wurdeman, 309 Mo. 341, 274 S.W. 380; In re Foy, 116 P.2d 545; Unemployment Comp. Comm. of Mississippi v. Barlow, 1 So.2d 241; Woodmen of the World Life Ins. Society v. Olsen, 2 N.W.2d 353. (3) The decision allowing claimant benefits based upon her employment by the appellant herein is supported by substantial competent evidence. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Secs. 9423 (h), 9426 (g), R. S. 1939; Kellogg v. Murphy, 349 Mo. 1165, 164 S.W.2d 285; Unemployment Comp. Comm. v. City Ice & Coal Co., 216 N.C. 9, 3 S.E.2d 290; Witherspoon Oil Co. v. State, 156 S.W.2d 579; Washington Oil Corp. v. State, 159 S.W. 517; Godsol, etc., v. Michigan Unemployment Comp. Comm., 5 N.W.2d 519; New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 21 A.2d 383; Murphy v. Hurlbut Undertaking & Embalming Co., 346 Mo. 405, 142 S.W.2d 449; A. J. Meyer & Co. v. Unemployment Comp. Comm., 348 Mo. 147, 152 S.W.2d 184. (4) The Commission's decision awarding increased benefits to the claimant was not erroneous because there was no showing that she was entitled to benefits to be charged against her last employer. Sec. 9430 (e) (f), R. S. 1939. (5) Paragraph (4) of subsection 9423 (h) of the Unemployment Compensation Law does not offend against the constitutional provisions forbidding arbitrary classification and requiring equal protection of the laws. Mississippi Unemployment Comp. v. Avent, 192 Miss. 85, 4 So.2d 296, Appeal Denied, 316 U.S. 641, 62 S.Ct. 947, 86 L.Ed. 1727; State of Washington v. Kitsap County Bank, 10 Wash. (2d) 520, 117 P.2d 228; Maine Unemployment Comp. Comm. v. Androscoggin, Jr., Inc., 137 Me. 154, 16 A.2d 252; New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 21 A.2d 383; Unemployment Comp. Comm. v. J. M. Willis Barber & Beauty Shop, 219 N.C. 709, 15 S.E.2d 4; Florida Industrial Comm. v. Gary Lockhart Drug Co., 143 Fla. 293, 196 So. 845; Gibson Products Co. v. Murphy, 186 Okla. 714, 100 P.2d 453; Godsol, etc., v. Michigan Unemployment Comp. Comm., 5 N.W.2d 519.

OPINION

Clark, J.

This proceeding involves a construction of portions of the Unemployment Compensation Law (Art. 2, Chapter 52, R. S. Mo. 1939; Mo. R. S. A., pp. 45-131) which, for sake of brevity, will hereafter be referred to as the Act. The proceeding was commenced by the filing of a claim with the Unemployment Compensation Commission by one Ida Gershen, on April 3, 1940. A Claims Deputy determined that claimant was entitled to benefits in the amount of $ 5.00 per week until a total of $ 18.55 was paid. This determination was made on the basis of claimant's earnings while employed by others than appellant. The determination was shown to claimant on April 17, 1940, but was not delivered to her until June 17, 1940. On the same day she appealed to an Appeals Referee on the ground that the determination did not include a consideration of her earnings while she was employed by appellant who, she contended, was subject to the Act. Evidence was heard and continuances taken from time to time. On September 26, 1940, claimant attempted, in writing, to withdraw her appeal, but permission to do so was refused by the Referee. On September 27, 1940, the Referee made his decision, based on claimant's employment by appellant and other employers, holding that claimant was entitled to benefits in the sum of $ 8.00 per week until a total of $ 76.15 be paid. The appellant, Krisman, appealed to the Commission from the decision of the Referee. After several hearings the Commission, on June 21, 1941, sustained the decision of the Referee. Appellant filed a petition for judicial review in the circuit court where the decision and finding of the Commission was sustained in May, 1942, and Krisman has appealed to this court.

Appellant's contentions are substantially as follows: (1) claimant's appeal from the Deputy to the Referee was not timely because taken more than five days after she had actual notice of the decision of the Deputy; (2) jurisdiction was lost by the withdrawal of her appeal by claimant; (3) the finding and decision of the Commission is not supported by substantial competent evidence; (4) there was no showing...