Wolpers v. Unemployment Compensation Com'n

• Decision Date: 05 March 1945
• Docket Number: 39318
• Parties: John H. Wolpers, Mrs. John H. Wolpers, John C. Corrigan, Mrs. F. M. Kinder, Grace Wolpers Stanard, Cora Nance Wilson, Robert M. Wolpers, John Alan Wolpers, Rose M. Saracini, Roberts V. Stanard, Geraldine Mengel, Henry M. Wolpers, Dorothy Wolpers McFall, James Hendrickson, Blanche Boyd Wolpers, F. P. Jacobs, Co-partners, doing business under the firm name and style of Poplar Bluff Printing Company, v. Unemployment Compensation Commission of Missouri, and E. J. Keitel, Harry P. Drisler and George A. Rozier, Members, and Buena W. Doty, Appellants
• Court: Missouri Supreme Court

186 S.W.2d 440

353 Mo. 1067

John H. Wolpers, Mrs. John H. Wolpers, John C. Corrigan, Mrs. F. M. Kinder, Grace Wolpers Stanard, Cora Nance Wilson, Robert M. Wolpers, John Alan Wolpers, Rose M. Saracini, Roberts V. Stanard, Geraldine Mengel, Henry M. Wolpers, Dorothy Wolpers McFall, James Hendrickson, Blanche Boyd Wolpers, F. P. Jacobs, Co-partners, doing business under the firm name and style of Poplar Bluff Printing Company, v. Unemployment Compensation Commission of Missouri, and E. J. Keitel, Harry P. Drisler and George A. Rozier, Members, and Buena W. Doty, Appellants

No. 39318

Supreme Court of Missouri

March 5, 1945

Rehearing Denied April 2, 1945.

Appeal from Butler Circuit Court; Hon. Randolph H. Weber Judge.

Affirmed.

Edward D. Summers, Acting Chief Counsel, and John F Sloan, Assistant Counsel, for appellants; George A. Rozier of counsel.

(1) The Supreme Court has jurisdiction of this case because the members of the Commission are parties hereto in their official capacities as officers of the State of Missouri. Murphy v. Hurlbut Undertaking & Embalming Co., 346 Mo. 405, 142 S.W.2d 449; Trianon Hotel Co. v. Keitel, 169 S.W.2d 891. (2) Evidence establishing that an individual is ready, willing and in a position to accept at once any suitable work which he has reasonable prospects of obtaining is sufficient to support a finding that such individual is "available for work" within the meaning of Section 9430, R.S. 1939. Sec. 9430, R.S. 1939; Haynes v. Unemployment Compensation Comm., 353 Mo. 540, 183 S.W.2d 77; Cases No. 212 and 14/25, General Supplement No. 1, Unemployment Compensation Interpretation Services, Benefit Series, BU-52, p. 168, and BU-53, pp. 168, 169; Case No. 75, Unemployment Compensation Interpretation Services, General Suppl. No. 1, Benefit Series, BU-9, p. 123; Shorten v. Unemployment Compensation Comm., 10 Conn. Sup. 186, 10 Conn. Law Journal, No. 13; Henry v. Ford Motor Co., 291 Mich. 535, 289 N.W. 244. (3) The purpose of the Unemployment Compensation Law is to pay benefits to individuals who are unemployed through no fault of their own. Sec. 9422, R.S. 1939; Sec. 9430 (c), Laws 1943, l.c. 934; Haynes v. Unemployment Compensation Comm., 353 Mo. 540, 183 S.W.2d 77; Henry v. Ford Motor Co., 291 Mich. 535, 289 N.W. 244. (4) In an appeal from a decision of the Unemployment Compensation Commission the findings of fact made by the Commission are conclusive upon the court if there is substantial evidence to support them, and in determining the sufficiency of such evidence it must be considered in the light most favorable to the findings of the Commission. Atkisson v. Murphy, 179 S.W.2d 27; Trianon Hotel Co. v. Keitel, 350 Mo. 1041, 169 S.W.2d 891; Haynes v. Unemployment Compensation Comm., 353 Mo. 540, 183 S.W.2d 77; Henry v. Ford Motor Co., 291 Mich. 535, 289 N.W. 244. (5) The Unemployment Compensation Law is required to be liberally construed in favor of the payment of benefits to unemployed individuals who are eligible therefor so as to provide security against unemployment. Sec. 9422, R.S. 1939, as amended 1941, p. 566, sec. 1; Haynes v. Unemployment Compensation Comm., 353 Mo. 540, 183 S.W.2d 77; Zehender & Factor, Inc., v. Murphy, 53 N.E.2d 944; Godsol v. Michigan Unemployment Compensation Comm., 5 N.W.2d 519; Oak Wood Cemetery Assn. v. Murphy, 50 N.E.2d 582; Waterbury Savs. Bank v. Danaher, 20 A.2d 455; Carmichael v. Southern Coal & Coke Co., 501 U.S. 495.

Tedrick & Tedrick for respondent.

(1) The claimant's evidence was insufficient to support the award made by the Commissioner, therefore the circuit court was justified in setting aside said award and in remanding the cause. S.S. Kresge Co. v. Unemployment Compensation Comm., 162 S.W.2d 838; Yancy v. Egyptian Tie & Timber Co., 95 S.W.2d 1230; Newman v. Rice-Stix Dry Goods Co., 73 S.W.2d 264; A.J. Meyer Co. v. Unemployment Compensation Comm., 152 S.W.2d 184. (2) The scintilla of evidence rule does not obtain in Missouri. S.S. Kresge Co. v. Unemployment Compensation Comm., 162 S.W.2d 838; Wallingford v. Terminal Railroad Assn., 88 S.W.2d 361. (3) The burden of proof to establish claimant's rights to benefits under the Unemployment Compensation Act, rests upon the claimant. Queener v. Magnet Mills, 167 S.W.2d 1; Haynes v. Unemployment Compensation Comm., 183 S.W.2d 77; Downs v. Horton, 230 S.W. 103; Clapper v. Lakin, 123 S.W.2d 27. (4) Claims for unemployment have been denied on the theory that the unemployed claimant was not "available for work" in the following cases, all of which are similar to the instant case. Brown-Brockmeyer Co. v. Board of Review, 70 Ohio App. 370, 45 N.E.2d 152; Steinberg v. Miller, 263 A.D. 916, 32 N.Y.S. (2d) 197; Haynes v. Unemployment Compensation Comm., 183 S.W.2d 77. (5) Words and phrases of a statute shall be taken in their plain or ordinary and usual sense. Sec. 655, R.S. 1939; Haynes v. Unemployment Compensation Comm., 183 S.W.2d 77. (6) Webster's International Dictionary (2 Ed.) defines "available" "as capable of being used for a purpose, ready, handy, convenient, usable, obtainable," and defines the term "able" as "fit, adapted, suitable." (7) Subsection (c) of Sec. 9430, R.S. 1939 is as follows: "He is able to work, and is available for work." (8) Certain statutes have been enacted in Missouri for the purpose of safeguarding the health and safety of employees, and it would be a peculiar situation, if our courts would abrogate the provisions of these health measures, in order to give an ultra liberal construction to the statute invoked in this case. Secs. 9756, 10211, 10248, R.S. 1939.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

The issue here is whether one having a communicable hazardous disease, tuberculosis, is "able to work and available for work" within the meaning of the Unemployment Compensation law (Sec. 9430, (c), R.S. 1939) and therefore eligible to receive benefits thereunder. The Unemployment Compensation Commission's award to the claimant was reversed and the cause remanded upon review by the circuit court and the case is brought here for adjudication. Trianon Hotel Co. v. Keitel, 350 Mo 1041, 1045, 169 S.W. 2d 891, 893[2, 4]. We think the circuit court was right.

Buena W. Doty instituted the proceeding before the Unemployment Compensation Commission on April 2, 1943. Claimant had been employed as a linotype operator for sometime by a co-partnership composed of John H. Wolpers and others, doing business at Poplar Bluff, Missouri, under the firm name and style of Poplar Bluff Printing Company, respondents here. Claimant voluntarily quit her employment September 5, 1942, upon being advised she had tuberculosis. She went to the State of California and there was told she was suffering from bronchitis bordering on tuberculosis and not from tuberculosis. She was advised to rest. She returned to Poplar Bluff. The local chapter (or chapel) of the Union, upon receiving reports that claimant contemplated returning to work and affording claimant an opportunity, notified her she no longer was entitled to her priority because of her failure to produce a certificate that she was physically fit to work. The chairman of the chapel, about 3 or 4 weeks later, advised claimant that this action had been revoked because "the chapel had no authority" under the by-laws to take such action. Claimant worked intermittently for the Peerless Brief Printers from January to August, 1943, when she became regularly employed there. However, in November, 1943, the Peerless Brief Printers sold their business. In these circumstances the Unemployment Compensation Commission, on March 2, 1944, determined that claimant was entitled to receive benefits under the Unemployment Compensation law; finding claimant "is able to work, and is available for work." In making the award the Commission assumed that claimant had tuberculosis. ^[*] The case is presented on the theory tuberculosis is a communicable hazardous disease.

Section 9430, (c), R.S. 1939, provides: "An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that . . . (c) He is able to work, and is available for work."

We think the case may turn upon claimant's being "available for work", one of the constitutive elements to be established by substantial probative evidence by claimant under Sec. 9430, (c), as the condition to an award of benefits. The litigants treat the word available, in the phrase "available for work," as meaning "capable of being used to accomplish a purpose, usable"; "ready, handy, convenient, usable, obtainable." See Webster's New International Dictionary, 2d Ed.

Haynes v. Unemployment Compensation Comm. (Nov. 6, 1944), 353 Mo. 540, 183 S.W. 2d 77, held an employee, a married woman was "unavailable for work" and ineligible for benefits under the act where she voluntarily left her employment on account of a nervous condition on the advice of a physician and, although she professed a willingness to work, refused on account of her physical condition to return to her former work or to accept other less exacting work which, however, subjected one to a nervous strain, on the theory the employee had so restricted the type of work she was willing to accept as to make herself unavailable for work. We call attention to a number of earlier cases on the issue of availability for work there reviewed (l.c. 81): "Claims for unemployment benefits have been denied on the theory that the unemployment claimant was not 'available for work,' (1) where claimant could not, because of her children, continue to work on the third shift at a factory even though she could have worked on the first or second shifts (Judson Mills v. South Carolina Unemployment Compensation Commission, 204 S.C. 37, 28 S.E.2d 535...