296 N.W. 630 | Wis. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *239
Action brought by Boynton Cab Company against the defendants, Henry Giese and the Industrial Commission, to set aside the allowance of unemployment benefits under ch. 108, Stats., to Giese as a discharged employee of plaintiff. Upon a trial of the issues under the pleadings, the court filed findings of fact and conclusions of law upon which judgment was entered affirming the award. Plaintiff appealed from the judgment.
The defendant, Henry Giese, was employed for about four years (except for a brief interval in February, 1938) as a taxicab driver by the appellant, Boynton Cab Company, until it discharged him on November 18, 1938. Upon his filing a claim for unemployment benefits under ch. 108, Stats., the commission gave due notice thereof to appellant in compliance with sec.
Appellant's principal contentions are (1) that the commission acted without and in excess of its powers in allowing the unemployment benefits to Giese and in forcing appellant to assume the burden of proof on the hearing before the tribunal; and (2) that the "initial determination" by the deputy and the affirming of his decision by the tribunal and the commission is a denial of due process contrary to art. XIV, U.S. Const. This latter contention is based upon appellant's claims that the evidence, upon which the deputy made the "initial determination," was not known to appellant, nor was such evidence required to be produced and appellant given an opportunity to rebut it. Whatever may have been the nature of the evidence upon which the deputy acted, it does not appear that appellant was aggrieved by his mere "initial determination" upon but an administrative investigation, which was not binding upon appellant inasmuch as it was entitled to and duly granted, upon its request, a hearing with *241
a trial de novo before the tribunal under subs. (2) to (5) of sec.
"The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. The proceedings before the administrator as provided *242
by sec. 8 (b) satisfy the requirements of due process without further requirement, which the statute omits, of a hearing on notice before the committee." Opp Cotton Mills, Inc.,v. Administrator,
In passing upon the contentions that it was not "due process of law" to allow testimony to be taken without notice to either party and notice of an applicant's claim for compensation to be given by mail, as provided in sec. 2394 — 16, Stats. (Workmen's Compensation Act), this court said inBorgnis v. Falk Co.
"Were the commission a court these objections would probably deserve serious consideration, especially the latter one. But, as we have seen, the commission is an administrative board merely. It is common knowledge that such boards are frequently given power to investigate and determine facts without notice to the parties of each successive step in the proceedings. The proceedings before such boards are not expected to be as formal and cumbrous as the proceedings of courts; indeed, the greater flexibility which such bodies must possess if they are to discharge their duties seems to demand greater freedom of action. If notice, either actual or constructive, of the commencement of the proceedings before such a body be required to be given to the parties interested and they be given full and free opportunity to be heard and present evidence, it is generally held sufficient, even though notice of intermediate steps in the proceeding be not required or given."
To the same effect see Milwaukee County v. Dorsen,
The contention by appellant that the commission erred in requiring appellant to assume the burden of proof is made in relation to the commission's implied approval of a ruling made *243
by the tribunal, upon appellant's counsel inquiring whether it was to put in its evidence first, and stating that he assumed that the record ought to contain some evidence upon which there was based the initial finding that this was a case for payment of compensation. The chairman of the tribunal ruled, "This, in effect, is a trial de novo. The decision in this case will be based upon the testimony presented at the hearing. The burden of proof is upon the employer, who is attempting to protect his reserve fund." This ruling, which is questioned by appellant, was proper in view of the following matters: (1) The stipulation at the commencement of the hearing that the only question involved was whether Giese was discharged for dishonesty; (2) the provision in sec.
"The workmen's compensation act is a beneficent law enacted for a beneficent purpose. The accomplishment of that purpose is not promoted by imposing upon the dependents of one who has come to his death in the service of his employer the burden of proving the exact terms of the contract under which the services were performed. In cases such as this, the favorite of the law might well become the victim of a rule of evidence. Such a result would illy comport with the purposes of the Workmen's Compensation Act. The law should be consistent. It should not offer compensation with one hand and withdraw it with the other."
Likewise similar, in so far as the question of burden of proof is concerned, is the situation when in an action by an employee to recover damages from his employer for the latter's breach of the contract of employment, he seeks to defeat the recovery on the ground that the employee was guilty of such misconduct as warranted the discharge. There is then applicable the rule that —
"The master has the burden of showing a sufficient cause for discharging the servant, the latter being under no *245
obligation to show that he was without fault." 39 C.J.p. 101, § 120. Roberts v. Brownrigg,
Appellant's contention that the commission acted without and in excess of its powers in allowing the unemployment compensation is based upon appellant's claim that the evidence does not sustain the tribunal's findings and decision and the adoption and affirmance thereof by the commission. Under the provisions in sec.
The tribunal found that on the night in question Giese spent seven hours all told in driving the customer in his own car and also in appellant's cab; that while using the car Giese parked the cab in a parking station because the customer would not allow him time to return it to the appellant's garage; that for all of the services and time spent the customer paid Giese $10 and, in addition, gave him a personal tip amounting to $4, and that Giese turned in the $10 to appellant as part of his daily receipts; that appellant's night supervisor saw the parked cab and reported to appellant's superintendent that it was at the parking station for about seven hours, and that Giese did not turn in the entire fare which he had collected; that the next day Giese was instructed to see the *247
superintendent; that the latter had heard rumors before Giese appeared that he collected $17 from the passenger, and questioned him as to the amount he had received, and that he denied that he had received more than $10 as fare, and the superintendent then told him that he was discharged because he was dishonest; and, in this connection, the tribunal found that the superintendent's mistaken belief that Giese had been dishonest was the "motivating reason for the discharge." The tribunal also stated in its findings that "The employer, in addition to contending that" the employee "was dishonest, alleged that" the employee "violated certain company rules on the last night of his employment and also that during the period of his employment his conduct was unsatisfactory. In view of the above findings it is unnecessary to consider these allegations. The appeal tribunal therefore finds that the employee was not discharged for misconduct connected with his employment, within the meaning of sec.
The tribunal's finding that the "superintendent's mistaken belief that the employee had been dishonest was the motivating reason for the discharge" was warranted in view of the facts (1) that appellant's superintendent testified, "I told Mr. Giese that I understood he had collected $17 for the trip and had only turned in $10; that the whole thing hurt me because Giese had been given chances before, and when he turned around and pulled a dishonest charge on me I fired him;" (2) that the only ground stated in appellant's written rejection was that "Giese was discharged on November 18, 1938, . . . because of dishonesty;" and (3) the agreement that the only question then involved on the hearing before the tribunal was whether or not Giese was discharged for dishonesty. Likewise, as there was testimony which admitted of the tribunal's finding that the sum of $10 which Giese turned in to the appellant was the amount the customer paid for the cab services and time *248 spent, and that the $4 were paid to Giese as personal tips, the tribunal was warranted in finding that the superintendent was mistaken in believing that Giese had been dishonest in that respect. And this finding, together with the finding that the motivating reason for the discharge was that mistaken belief, warranted the tribunal's conclusion that it was unnecessary to consider appellant's contentions that its rules had been violated by Giese on the night in question and that his conduct was unsatisfactory during his employment.
Inasmuch as the tribunal found, in effect, that Giese was not dishonest in turning in but $10 as the entire amount paid to him for the services and time for which appellant was to be compensated, and as in the absence of dishonesty in this respect, there was no misconduct on Giese's part to constitute the basis for his discharge on the ground of dishonesty, there is not involved on this appeal any question as to whether a discharge on the ground of such dishonesty, if it had been established on the hearing, would have constituted such misconduct as to render an employee ineligible under sec.
Appellant also contends that under the provision in sec.
By the Court. — Judgment affirmed.