Thompson v. Hygrade Food Products Corp.

• Decision Date: 30 September 1965
• Docket Number: No. 1,No. 20275,20275,1
• Citation: 137 Ind.App. 591,210 N.E.2d 388
• Parties: Oliver L. THOMPSON, Appellant, v. HYGRADE FOOD PRODUCTS CORP. and the Review Board of the Indiana Employment Security division, Appellees
• Court: Indiana Appellate Court

Page 388

210 N.E.2d 388

137 Ind.App. 591

Oliver L. THOMPSON, Appellant, v. HYGRADE FOOD PRODUCTS CORP. and the Review Board of the Indiana Employment Security division, Appellees.

No. 20275.

Appellate Court of Indiana, Division No. 1.

Sept. 30, 1965.

[137 INDAPP 592]

James W. Stilwell, of Stilwell, Hackemeyer & Life, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Keith Campbell, Deputy Atty. Gen., for appellee Review Board of Indiana Employment Security Div.

WICKENS, Judge.

Appellee filed a motion to affirm because of certain omissions in appellant's brief. On leave of court, in the meantime, appellant amended his brief. We therefore now overrule the motion to affirm.

This is a judicial review of a decision of the Indiana Employment Security Division Review Board. In such matters this court acts only for the purpose of exclusive original jurisdictional review, and not as an appellate tribunal. Ball Bros. Co. v. Rev. Bd. of Ind. Emp. Sec. Div. (1960), 240 Ind. 582, 583, 167 N.E.2d 469; State ex rel. Standard Oil Co. v. Review Bd. (1951), 230 Ind. 1, 12, 101 N.E.2d 60; Teepe v. Review Board of Indiana Emp. Sec. Div. (1964), Ind.App., 3 Ind.Dec. 647, 648, 649, 200 N.E.2d 538, 539.

We are not permitted nor required to substitute our judgment for that of the Board.

[137 INDAPP 593] The decision of the Review Board as to all questions of fact are conclusive and binding and such decision will not be disturbed unless reasonable men would be bound to reach a different conclusion on the evidence in the record. Achenbach v. Review Bd. of Ind. Emp. Sec. Div. (1962), 242 Ind. 655, 660, 179 N.E.2d 873; Jackson v. Review Board of Indiana Emp. Sec. Div. (1963), Ind.App., 1 Ind.Dec. 604, 606, 191 N.E.2d 525, 527; Dawe v. Review Board of Ind. Emp. Sec. Div. (1961), 132 Ind.App. 371, 377, 177 N.E.2d 472; Massengale v. Rev. Bd. of Ind. Emp. Sec. Div. (1961), 132 Ind.App. 587, 593, 178 N.E.2d 557.

The question presented is whether or not appellant, Oliver L. Thompson, was discharged for misconduct in connection with his work and, therefore, ineligible for benefits under Acts 1947, ch. 208, Sec. 1501, p. 673 as amended, Sec. 52-1539 Burns' 1964 Replacement.

The part of the Board's decision necessary to the determination of that question is: 'The Review Board therefore finds the claimant was discharged on January 12, 1964 for misconduct in connection with his work, within the meaning of the Indiana Employment Security Act as it has been construed by the courts.' We have examined the decision as well as all of the evidence in the record. The decision sets forth sufficient facts to support the foregoing ultimate fact, so established and thus settled.

Appellant claims that he was discharged December 23, 1964 when he telephoned a Mr. Mayhew at his employer's place of business and told Mayhew that he, appellant, was ill. There is some evidence to support that contention. There is also evidence that no such call was made and that he was absent without excuse or explanation from December [137 INDAPP 594] 23, 1963 to January 14, 1964. The latter is the evidence upon which the Board relied and since it has probative value, we are not at liberty to alter the Board's decision.

Appellant also asserts that certain things are established because they are in the record as a part of the findings of a Deputy of the Employment Security Division. The Deputy conducted a preliminary hearing on...