Sullivan v. Appeal Bd. Mich. Employment Sec. Commission, 48

• Decision Date: 04 January 1960
• Docket Number: No. 48,48
• Parties: Scott SULLIVAN, Plaintiff and Appellant, v. APPEAL BOARD MICHIGAN EMPLOYMENT SECURITY COMMISSION and Michigan Employment Security Commission and Ceco Steel Products Corporation, a Corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 713

100 N.W.2d 713

358 Mich. 338

Scott SULLIVAN, Plaintiff and Appellant, v. APPEAL BOARD MICHIGAN EMPLOYMENT SECURITY COMMISSION and Michigan Employment Security Commission and Ceco

Steel Products Corporation, a

Corporation, Defendants and Appellees.

No. 48.

Supreme Court of Michigan.

Jan. 4, 1960.

Roman V. Ceglowski, Hamtramck, for plaintiff and appellant.

Paul L. Adams, Atty. Gen., Edw. J. Settock, Asst. Atty. Gen., for defendant.

Before the Entire Bench.

KAVANAGH, Justice.

Claimant was employed by defendant Ceco Steel Products Corporation as a laborer from August 2, 1950, to August 9, 1957. Monday, August 12, was his next work day. On this day he advised the employer that he had some personal business 'downtown' and that he was taking one-half day off to take care of this business. While 'downtown' he met some friends and began to drink, eventually becoming intoxicated, was arrested and was sent to the Detroit House of Correction for a 30-day period. He was released on Saturday, September 7, from this sentence. On Thursday, August 15, the employer received a telephone call from claimant's wife stating that the claimant was arrested for drunkenness and was incarcerated in the Detroit House of Correction. On the following Friday claimant's wife picked up his check. She continued to call the employer one or two times each week thereafter while the claimant was in jail.

Claimant applied to his employer for a resumption of work either on Tuesday, September 10, as alleged by the claimant, or on Thursday, September 12, as testified to by the employer's witness. He was not reinstated. He had been removed from the payroll as a 'voluntary quit' as of August 15, 1957.

On September 16, 1957, claimant filed a claim for unemployment benefits and the claim was denied. It was alleged he was disqualified under the provisions of the Michigan employment security act*, section 29, subdivision (1)(a)(1) (C.L.S.1956, § 421.29 [Stat.Ann.1957 Cum.Supp. § 17.531]), because his separation was considered voluntary and in no way attributable to his employer. It was conceded that the employer received notice from the wife of the claimant on the fourth day of his absence from work, which is within the terms of the contract between the company and the union that in order not to be considered as a 'voluntary quit' an employee is to give notice within four days.

A request for redetermination was filed by claimant, and prior determination affirmed by the commission on November 12, 1957. The referee who heard the case on November 25, 1957, affirmed the redetermination issued by the commission. The decision of the referee was affirmed by the appeal board on February 18, 1958. The decision of the appeal board was in turn affirmed by the late Joseph A. Moynihan, judge of the Wayne county circuit court, from which decision claimant appeals.

Section 2 of the Michigan employment security act (C.L.S.1956, § 421.29 [Stat.Ann.1957 Cum.Supp. § 17.531]) provides, in part, as follows:

'(1) An individual shall be disqualified for benefits:

'(a) For the duration of his unemployment in all cases where the individual has: (1) Left his work voluntarily without good cause attributable to the employer or employing unit, or (2) has been discharged for misconduct connected with his work or for intoxication while at work.'

The sole question before this Court is: May an employee who is discharged by his employer because of his forced absence from work, occasioned by his incarceration for being drunk, properly be disqualified for benefits under section 29, subdivision (1)(a)(1) of the employment security act on the theory that he left his work voluntarily without good cause attributable to his employer?

A similar question was before this Court in the case of Thomas v. Employment Security Commission, 356 Mich. 665, 97 N.W.2d 784. The majority opinion in that case, written by Chief Justice Dethmers, controls the fact situation presented to us here. No service would be rendered the Bench and Bar in restating the legal reasoning and the citation of authorities referred to in the Thomas opinion. It should be sufficient to quote a part of the last paragraph, which reads as follows (356 Mich. at page 670, 97 N.W.2d at page 786):

'There appears to have been nothing voluntary about this so far as claimant was concerned. On the contrary, at that juncture he was present at a place where he did not wish to be, jail, and, perforce, absent from the place where he did wish to be, his place of work.'

Section 29 of the act is the disqualification section. Under subsection (1)(a)(2) thereof it specifically mentions discharge for misconduct connected with work or for intoxication while at work.

The legislature did not make provision for disqualification under the facts in this case. It is not the proper function of this Court to amend the statute to broaden or extend the disqualifications fixed by plain language by the legislature. Whether such a disqualification ought to be inserted in the act is an argument that should be presented to the legislature and not to this Court.

The order affirming the determination of the appeal board by the circuit judge is hereby reversed. Judgment may be entered in accordance with this opinion. Costs in favor of appellant.

DETHMERS, C. J., and SMITH, BLACK and EDWARDS, concurred with KAVANAGH, J.

CARR, Justice (dissenting).

The question at issue in this case is whether the plaintiff is entitled to unemployment compensation under the provisions of the Michigan statute.* The employment security commission denied benefits. The referee before whom proofs were taken affirmed such action, and the employment security appeal board upheld the factual findings and legal conclusions of the referee. On appeal to the circuit court of Wayne county judgment was entered in accordance with the action of the appeal board.

The facts and legal questions at issue appear in the following excerpt from the opinion of the referee.

'Claimant was hired as a warehouse laborer by the Ceco Steel Products Corporation on August 2, 1950. He continued in this employment through August 9, 1957. Monday, August 12, was his next work day. Work was available for the claimant. However, the claimant was absent on that day and in the next succeeding days. On Thursday, August 15, the employer received a telephone advice from claimant's wife stating that the claimant was arrested for drunkenness and was incarcerated in the Detroit House of Correction. Claimant's wife continued to call the employer one or two times in each week thereafter while the claimant was in jail.

'Claimant was found guilty of the charge of drunkenness and was sent to the detroit House of Correction for a 30-day period. However, he was given off three days for good behavior and was released on Saturday, September 7, 1957. Claimant applied to the employer for a resumption of work either on Tuesday, September 10, as alleged by the claimant, or on Thursday, September 12, as testified to by the employer's witness. He was not reinstated. He had been removed from the payroll as a voluntary quit as of August 15, 1957, because of said absence.

'Claimant admitted that he had been arrested on Monday, August 12, for being in a drunken stupor and had been confined at the Detroit House of Correction through September 7, 1957. Claimant stated that he reported for a reinstatement on the job on Tuesday, September 10, and was informed that he had been laid off. He has not been reinstated in said employment since.

'Findings, Reasons and Conclusions

'The question in this case deals with claimant's separation from work. The issue involves the terms of Section 29(1)(a) of the Act. It is therein provided that an individual shall be disqualified for benefits for the duration of his unemployment (1) if he leaves his work voluntarily without good cause attributable to the employer, or (2) if he is discharged for misconduct connected with his work.

'A separation from work because of incarceration is generally held to constitute a voluntary leaving of the work, on the theory that the commission of the...