M. F. A. Milling Co. v. Unemployment Compensation Com'n

• Decision Date: 06 April 1943
• Docket Number: 38318
• Citation: 169 S.W.2d 929,350 Mo. 1102
• Parties: M. F. A. Milling Company, a Corporation, Appellant, v. Unemployment Compensation Commission of Missouri and Otto W. Muggelberg, Respondents
• Court: Missouri Supreme Court

169 S.W.2d 929

350 Mo. 1102

M. F. A. Milling Company, a Corporation, Appellant, v. Unemployment Compensation Commission of Missouri and Otto W. Muggelberg, Respondents

No. 38318

Supreme Court of Missouri

April 6, 1943

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

Neale Newman, Neale & Freeman for appellant.

The court erred in rendering judgment for respondent and against the appellant in holding that an employee may sue his employer without giving notice of his intention to sue and after filing suit to refuse to discuss its merits or to dismiss it; that the employer was not justified in discharging the employee for such conduct and that the filing of the suit did not affect the character or quality of the work done by the employee, and, therefore, said action was not wrongful or "Misconduct connected with the work," under the Missouri Unemployment Compensation Law 40 C. J. 1220; 39 C. J. 80; Brink v. Fay, 7 Daly, 562; Wade v. William Barr Dry Goods Co., 155 Mo.App. 405, 134 S.W. 1084; Ross v. Grand Pants Co., 170 Mo.App. 291, 156 S.W. 92; McCain v. Desnoyers, 64 Mo.App. 66; Bell v. Faulkner, 75 S.W.2d 612; Garlichs Agency Co. v. Anderson, 226 S.W. 978; Carson v. McCormick Machine Co., 36 Mo.App. 462.

George A. Rozier, Chief Counsel, and Mahlon Z. Eubank, Assistant Counsel, for respondent; Harry G. Waltner, Jr., of counsel.

(1) Jurisdiction of the Supreme Court. Sec. 9432a (b), Laws 1941, pp. 620, 621; A. J. Meyer & Co. v. Unemployment Compensation Comm., 152 S.W.2d 184, 348 Mo. 147. (2) The jurisdiction of the courts is confined to questions of law; and the finding of the Commission, if supported by competent evidence, is conclusive on this court. Sec. 9432 (i), R. S. 1939; A. J. Meyer & Co. v. Unemployment Compensation Comm., 348 Mo. 147, 152 S.W.2d 184. (3) The meaning of the term "misconduct in connection with work." Secs. 9430, 9431 (I) (b), R. S. 1939; Suggs v. Blow, 17 Mo. 359; Carson v. McCormick Harvesting Machine Co., 36 Mo.App. 462; McCain v. Desnoyers, 64 Mo.App. 66; Wade v. William Barr Dry Goods Co., 155 Mo.App. 405, 134 S.W. 1084; Ross v. Grand Pants Co., 170 Mo.App. 291, 156 S.W. 92; Burch v. Conklin, 204 S.W. 47; 39 C. J., p. 101, sec. 120; Boynton Cab Co. v. Geise, 237 Wis. 237, 296 N.W. 630; Vernon v. Rife, 294 S.W. 747; Marratta v. Chas. H. Heer Dry Goods Co., 190 Mo.App. 420, 177 S.W. 718; Koenigkraemer v. Missouri Glass Co., 24 Mo.App. 124; Miller v. Woolman-Todd Boot & Shoe Co., 26 Mo.App. 57; Collins v. Glass, 46 Mo.App. 297; Haxton v. Gilsonite Construction Co., 134 Mo.App. 360, 114 S.W. 577; Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636; Sec. 9422, R. S. 1939, as clarified Laws 1941, p. 569. (4) Claimant's discharge was not "misconduct in connection with his work." Secs. 4590, 4591, R. S. 1929, now Secs. 5066-5067, R. S. 1939; State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70; Clay Commercial Tele. Co. v. Root, 1 Sad. 485, 4 A. 828; Freeman v. Morrow, 156 S.W. 284; Garvin v. Chambers, 195 Cal. 212, 232 P. 696; Hawkins v. Kercheval, 10 Lea, 535; Wade v. William Barr Dry Goods Co., 155 Mo.App. 405, 134 S.W. 1084.

OPINION

Douglas, P. J.

This is a proceeding to review an award of the Unemployment Compensation Commission.

The sole question is whether the claimant was discharged for "misconduct connected with his work" and thereby disqualified from receiving unemployment benefits.

The claimant was an employee of the appellant. His usual working week was 48 hours at the flat rate of 40 cents per hour. Because of the Federal Wage and Hour Law (29 U.S.C. A., sec. 201 et seq.) reducing the working week to 44 hours with time and a half for overtime, the employer announced a new scale of wages. The hourly rate was reduced to 38 1/2 cents per hour for 11/12 of the number of hours the employee worked per week. For the remaining 1/12 number of hours the rate was 57 3/4 cents per hour. This combination actually resulted in an increase of 4 cents a week for a 48-hour week over the flat rate of 40 cents an hour for the same number of hours. The new rate was presented at a meeting of the employees. At a show of hands of those accepting it claimant first voted for it but quickly changed his mind and lowered his hand. When claimant received his first pay under the new scale he consulted an attorney who advised him that the change in the wage structure caused a reduction in his earnings. The attorney brought suit for the claimant on the theory that claimant's wages were reduced without the statutory 30-day notice being given, and prayed for the statutory fifty-dollar penalty. Secs. 5066, 5067, R. S. 1939. No notice of the intention to file the suit was given the employer. When the suit was coming on for trial claimant was fired because he refused to dismiss the suit.

Claimant then filed a claim with the Unemployment Compensation Commission. The employer resisted the claim on the ground that the failure of claimant to give notice of the filing of the suit was an act of misconduct connected with claimant's work and furnished a proper ground for the employer to discharge claimant and disqualified claimant from compensation. The pertinent statute is as follows:

"I. An individual shall be disqualified for benefits under the following conditions and in each case the weeks of such disqualification shall be deducted from the benefit period and his wage credits charged correspondingly as if benefits had been paid, whether or not such individual obtains other employment during such weeks of disqualification. . . .

"(b) For the week in which he has been discharged for misconduct connected with his work, if so found by the commission, and for not more than the eight weeks which immediately follow such week, as determined by the commission in each case according to the seriousness of the misconduct." Sec. 9431, R. S. 1939.

At a hearing before the referee claimant was the only witness. The employer offered no evidence. The referee found the facts above stated. In addition the referee found claimant was in sincere doubt about the effect of the wage change and his counsel advised him his wages were in fact reduced; that suit was brought on advice of counsel on the belief claimant was wronged and not for the purpose of harassing the employer. The referee concluded that the right of an employee in good faith to bring an action allowed him by statute was not misconduct. Upon appeal to the full commission, the findings and decision of the referee were affirmed. Employer filed suit to review the commission's decision. The circuit court affirmed the commission.

The learned trial judge found the claimant was not guilty of misconduct connected with his work. He said: "The resort to courts for redress of a claim to which claimant believes in good faith he is entitled is not, in my opinion, misconduct, even when the claim is made by an employee against his employer, and the failure to give advance notice of the claim or to discuss its merits in the absence of his attorney, while evidence of disposition that is discourteous and unfriendly, is not wrongful or misconduct within the meaning of the statute." The employer appealed to this court.

In this character of case our review is limited because the commission's findings of fact, if sustained by sufficient competent evidence, are, absent fraud, conclusive on appeal. In determining the sufficiency of the evidence we consider the evidence in the light most favorable to the findings. A. J. Meyer...