*1 1970] COMPANY v. CLEANSER MURPHY
ROMAN Opinion Court Preserving and Law Procedure — 1. Administrative Question— Appeal Necessary 1— and Error. Determination* Timeliness — may question be for first general rule a not raised The inflexible; appeal in cases is time on administrative law first sought a to be raised for the when consideration of claim case, necessary proper a determination of a time to on applied. prohibiting will not be the rules review Unemployment Compensation Requalification—Pinal 2. Deci- — Appeal Necessary Determination. sion — Error — compen- unemployment requalifieation of claimant for a eligibility for unem- necessary sation to his determine appellate ployment compensation was decided unemploy- though the decision of court even issue a compensation final because of ment commission made limit statutory failure the decision in Michigan, quit job moved voluntarily his where claimant there, employed from Kentucky was laid off and was unemployment Michigan com- job, his for and filed pensation, disqualification for because claimant’s 421.29[2], requalified (MCLA leaving until he continued §§ 421.32[a]). Unemployment Compensation Requalification—Out-of-State — Employment. requalified ben-
Unemployment was not compensation claimant voluntarily leaving employment after efits his out-of-state Michigan employer Michigan employer, would because the [2-7] [1] Retirement 2 Am Jur 48 Am References 2d, Jur, Funds Administrative Law 724§ Social §§ Security, Unemployment Points et seq. Headnotes et seq. Insurance, and by being required pay benefits from its own penalized account contribution from the other without (MCLA [a], 421.29[2], 421.29[3]). 421.29[1] §§ *2 by Levin, J. Unemployment Compensation Determination—Appeal 4. and Er- —
ror —Final Determination. Employment Security Determination Commission the of employment by Kentucky employer requalified claimant’s a him unemployment voluntarily quit he his Michi- for benefits after gan employer and that his an refusal offer of of Michigan because he wished to remain did not disqualify appellate him was and not reviewable the final employer court where the claimant’s deter- did the statutory (MCLA mination within 421.32[a}). the time limit Unemployment Compensation Check —Determination 5. —Benefit Decided —Good Cause. —Issues compensation unemployment The issuance each check of benefit entitling employer is a to a re- determination the claimant eligibility employee’s current determination of former qualification benefits; however, change a absent for of facts questions already laws, may reopened or decided not be of good (MCLA unless cause the commission reconsiders them for 421.88[a], 481.38[d}). §§ Unemployment Compensation 6. Check —Benefit Redetermina- tion —Good Cause Redetermination. concerning change a reconsideration relative law fact of of unemployment compensation eligibility an ben- claimant’s efits, statutorily obligatory employer’s on the de- claimant’s mand a when check is does not entitle issued benefit employer already to a redetermination all on issues decided original eligibility, determination because the relitigate would statutory all without re- issues free quirement showing (MCLA a 418.38[a], cause §§ 418.38[d]). Unemployment Compensation 7. —Benefit Check Redetermina- tion —Good Cause Redetermination. Employment An Security the is- Commission’s redetermination of suance check, a determination, benefit itself original commission eligibility reiterated its determination of did not original mean that where issues were reconsidered changed statement on eligibility nothing indicated that had Cleanser Roman op Opinion the Court no where there original af-
from on the presented the redetermination evidence firmative good cause of a reconsideration payment was also check 413.33[d]). (MCLA 413.32[a], already decided §§ issues J. Sub- Mnrphy, Thomas J. from Wayne, Appeal (Docket Detroit. 2, 1970, at 1 June Division mitted Leave 10, 1970. December Decided 7910.) No. Mich 828. appeal granted April against his claim Murphy presented J. William com- for unemployment Cleanser Company Roman Employment Benefits granted pensation. board. and affirmed Security Re- to circuit court. appealed Affirmed. appeals. The commission versed. Louis (by & Colombo Colombo, Vermeulen *3 for Colombo, Jr., Dumon), and Gerard M. Company.
Roman Cleanser J. Lee, for claimant William S Gursten, Gursten Murphy.
Frank, Robert A. General, Kelley, Attorney Eisenberg, Robert J. General, Solicitor Derengoski, Employ- for Attorney General, appellant Assistant ment Commission. Security J. H. P. J., Bor- Levin and Gillis,
Before: RADAILE,* JJ. com- unemployment
J. H. P. J. This is an Gillis, culmi- process case. The pensation administrative was nated in a claimant Murphy determination that was unani- entitled to benefits. That determination Commission, the Security mous per Employment * by assignment. judge, sitting Appeals Circuit on the Court of op Opinion the Court
hearing referee, board. and the commission’s employer, appealed Cleanser, Roman claimant’s ordering Murphy circuit court and it reversed, unlawfully for to reimburse the commission benefits paid. Circuit court also ordered the commission to payments and to refuse further credit Roman rating paid for Cleanser’s Murphy account those benefits charged against Roman ac- Cleanser’s Security Employment ap- count. The peals.
I dispute. Murphy The facts are not in William was employed first in Detroit the Roman Cleanser Company August September 30, On 1967, job voluntarily personal he left his reasons. At party promised Murphy time, third had ployment Kentucky where he wished to reestablish Murphy his home. moved from Detroit, found work Kentucky, employed and remained there from January November 29, 1967 to 18, 1968, when he laid was off because of a seasonal decline in con- January struction work. On 1968, 31, filed unemployment compensation. interstate claim for objected Murphy’s claim. It position was Roman’s was “quit benefits because he because he going down South”. On March 1, Roman Cleanser also informed the commission at the that, quit, decided to he offered con- *4 employment tinued with Roman in Detroit or new employment plants at Roman in either Atlanta or Miami. accepted None of these offers was because, according Murphy’s testimony to hearing before the already my referee, “I up had made mind and made plans to Kentucky”. come to 1970] 159 Murphy Opinion op the Couet
By determination dated March 13, 1968, the secu- rity commission held that was entitled to benefits. The determination reads: work 9-30-67 for reasons “Claimant left employer. were not attributable to “Therefore, the claimant Sub- 29(1) (a) ending 9- section 30-67 and is for the week act subject requalification period to a 6 week 29(3) under Subsection act. requalification requirement
“In this instance, the 29(3) under Subsection of the been act has satisfied on 1-27-68.
“In addition, the claimant’s benefit entitlement with this is reduced 6 weeks in accord- 29(4) ance with Subsection of the act. Wright
“Claimant’s with and Crouch Mayfield, Ky. Co., Const. P. Box 0. 11-29- from requalify verified, is held 1-18-68, claimant. regard by Michigan “With to offer of work ployer, pres- claimant states he wishes to remain in disqualification ent area. No under Subsection (l)(e). Payments statutory will be withheld for appeal period.” (Emphasis supplied). appeal from the No commission’s determination 15-day appeal per was filed Roman within the Accordingly, iod.1 the commission issued benefit April during months of checks May, May On Roman wrote commis voluntarily sion and reiterated that had left quit job work; at the time he he was offered a with Roman locations; at three that this open. offer still concluded: “It does letter appear work we with available should not penalized desire this claimant’s to be unemployed”. 17.534(1)]. MOLA See 421.32a Ann Rev [Stat *5 Opinion op the Court
By com 13, 1968, June dated redetermination Murphy again to entitled ben was held that mission timely appeal and Roman filed a efits under the act. hearing Testi a referee. before was scheduled (1) mony whether was on two issues: taken §29(l)(e) act2 of under accept good refusing Roman’s for cause to without (2) offers of whether eligible for ben available for work and therefore hearing (c).3 meaning 28(1) § The efits within redetermination, referee affirmed the commission’s resolving disputed in favor both issues Murphy. regard issue, first the referee With to the held: disqualifies indi- 29(1) (e) an of the act “Section accept failing suit- cause
vidual without 29(6), § him. Under able work when offered commission shall consider factors in deter- various mining indi- whether or not work is suitable dis- concerns vidual, and of such factors one his residence. work from tance the available herein had claimant “It was set forth that coming previously Kentucky before resided in locality Michigan to that he has returned now permanent avail- and has home. Work made this Michigan employer, is in it whether able with his Georgia distance Detroit, Florida, is a substantial away from circum- and, his residence under the the claimant stances, such work as offered after had not is moved and made his residence consequently, no dis- suitable, and, deemed to qualification imposed 29(1) (e) § of the act.” board the referee without affirmed modification.
On court, circuit Roman’s statement questions involved : included 421.29(1) (e) MCLA 17.531(1) (e)]. Ann 1968 Rev § fStat 421.28(1) MCLA (c) 17.530(1)(e)]. Ann 1968 Rev [Stat 1970] Opinion op the Court being disqualified “Did the claimant, after from receiving Michigan, effectively benefits reinstate working Kentucky?” himself for benefits *6 question. Rather, not this did answer Circuit court opinion court’s that trial it was the §29(l)(e) disqualified for failure of the act accept good work suitable when cause to without specifically, Roman’s continued offer offered— ployment characterized The trial court in Detroit. before it as follows: the issue * ** question is the is, “The involved what interpretation 29(6), provides: § correct “ determining work is ‘In whether the commission shall individual, for an suitable consider the safety degree health, risk to his involved prior physical and his fitness and morals, training, prior experience earnings, his and his length unemployment prospects securing customary occupation, local work in and the dis- his tance of available work from his residence.’ position
“The takes the commission his res- that idence is where he resides at the he his time files Company says claim, whereas the Roman Cleanser that the term ‘residence’ as used in the act means voluntarily quit employ- residence at the time he ment.” judge
The trial ruled that, as a matter of law, hearing the commission and the referee had erro- neously interpreted the term “residence”. He adopted Roman’s construction of term: “I hold that the interpreted word ‘residence’ should be as community residence in the where he lived when he voluntarily quit”. Accordingly, applying Detroit as claimant’s quit, residence when he the trial court concluded that the work offered Murphy was suitable accept and his refusal to such work Murphy for benefits. op Opinion Court
II Security Employment appeal, On accept Murphy’s Roman’s failure contends May disqualify employment4 did not offer 17,1968 proffered because benefits, him 29(1) (e) meaning of within the not suitable argues 29(6) that, The commission of the act. determining offered had whether Roman Murphy’s employment, the time at residence suitable controls, than his res rather was made such offer voluntarily quit. The commis he at idence (e) disqualifies 29(1) emphasizes claim sion only cause to failed without he “has ant accept where Applying him”. work when suitable offered “residence”, the com term this construction of the work offered on that the mission concludes great May of the 17, 1968, was not suitable because *7 separating Murphy, a resident of distance May in on and work offered Detroit. 17, the Murphy’s argued by commission, as the res-
If, employment the he was offered idence at time appear controls, it would that was indeed September 30, 1967, the offered suitable work on quit job he with Roman. For on that date Murphy, date the record shows that then resident of refused Roman’s offer of continued em- Detroit, ployment September in Detroit. As to offer employment, great it cannot be said that separated Murphy distance offered work. suggests, ques- however, The commission that suitability September tion of the of Roman’s longer 30 offer open no is review. That question, argues the commission, was resolved against Roman the commission’s determination of 17, 1968, May offer was contained in Roman’s pro- letter of test Roman to the commission where stated that the offer ployment quit open. made to at the he was still Company Murphy Opinion op the Court March 1968. And 13, since Roman did not appeal the commission’s determination within days, it final became operation law.
Likewise, the commission argues that Roman’s failure to its of March 13, precludes Roman from 1968, questioning the first time on this validity of the commission’s March 13 conclusion, underscored supra, Murphy’s Kentucky employment requalified him for benefits under the act.
Ill outset, we At reiterate that Roman raised requalification And, issue circuit court. notwith- the doctrine of administrative standing finality, issue raised and fully argued Roman’s brief to this Court. Roman asks: claimant,
“Did the after being disqualified from benefits in receiving Michigan, effectively requalify for benefits under subsection of the act 29(3) working Kentucky?” think question
We is one which, use Mr. Justice Black’s characterization, “stands forth from this record like Exealibur”. Prudential Insurance America v. Cusick (1963), 284. Accordingly, we decline to hold that Roman’s administrative tardiness precludes judicial review of the commission’s determination that Murphy’s work for a Kentucky employer requalified him for benefits. We regard question as to a necessary *8 proper determination of the case. “Even in law cases, also in the instance review decisions, administrative general ‘The rule that a question may not be raised for the ap- first time on peal to this Court is not inflexible.’ J., (Carr,
writing for the unanimous Court in Dation v. Ford op Opinion the Court 158]). [19 NS NCCA Mich 152, Co.,
Motor (pp 160, 161): proceeded Justice Carr “ sought to be of a claim ‘When consideration of a necessary proper determination ato raised is case, ” applied.’ Prudential will not be rule such supra, Company Cusick, at v. America Insurance 290. (Emphasis supplied.) Corporation Foundry Lakey And see Felcoskie v. (1969), 438, 442: 382Mich question appellant that the contends “In his first argue injury before fund second did plaintiff’s apply claim 4 did not board that argue it. Whatever hence be heard to cannot now argument, appellant’s correctness technical necessary proper perceive be we this issue to one accordingly will determination of this consider it.” necessarily requalification
That issue must properly case this considered order determine 29(2)5 is evident from the act itself. Section provides:
“Any disqualification 29(1) provided in subsection begin act or dis- shall in which the with week charge disqualification occurred which caused and shall continue until individual requalifies 29(3).” (Emphasis under subsection supplied.) legislative The mandate is clear: it can be unless Murphy requalified said his under the act Kentucky, disqualification work vol- untarily leaving Roman “shall continue”. repeat undisputed.
We
the facts are
question Murphy’s requalification
one of
thus
law. See I.
ployment Security
Dach
Em
M.
Underwear
(1956),
In Merren v.
(1966),
by
equally
App
Mich
affirmed
court,
divided
employee
who left with Michigan employer took work with an out-of- employer, by state and who was then laid off the out- employer, of-state was not to entitled reinstatement any part or use he had the credit weeks ac- quired working Michigan employer. while for the Those credit weeks were virtue of cancelled employee’s voluntary quitting. rationale in Our Merren was that:
“ grant penalize [would be] ‘To Merren’s claim Siegler Michigan employer], [the Lear who would pay any then Merren from- its own account without ” “employer”.’ contribution from another present Likewise, were we to hold in the case that Murphy’s Kentucky requalified work in him for penalize benefits under the act we would Roman requiring pay Murphy it from its own account employer. without contribution from another This we refuse to do.
We adhere to our decision in Merren. It controls this case. The commission erred as a matter law determining Murphy’s work with an out-of- employer requalified state charge- him for benefits able to Michigan employer. account of his former We disqualified conclude that stands the act. light
In of our we conclusion, need not decide whether Roman had offered suitable ployment Murphy’s accept and whether failure to such likewise him. [Dee Levin, J. judg- court’s portion the circuit vacate
We reimburse requires claimant ment paid. MCLA See for benefits the commission 17.534(1)]. Other- [Stat Rev Ann 1968 421.32a *10 public judgment costs, No a is affirmed. wise, question. J., concurred.
Borradaile, (dissenting). J. When William J., Levin, employ Roman Com Cleanser of left pany under the for benefits himself he Security Michigan Employment *However,on Act.1 Security Employment Commis 13, March 1968 the employment Ken his a sion determined that requalified 29(3)2 § tucky employer of him under employ of and his refusal of offer act Michigan in ment in he wished to remain because 29(1) (e).3 § Kentucky disqualify him did not appeal No from that determination was taken and expiration 15-day upon appeal it period.4 final of became sought Subsequently, Roman a redeter- Cleanser mination; 13, 1968, on June and the commission, employment security appeal thereafter, board ruled against appealed it. Roman then Cleanser majority, court, ruled in its circuit which favor. affirming the circuit court reversal of board, hold that as a matter the commission erred deciding Murphy’s of law in with “that work an out- requalified charge- of-state him for benefits Michigan able to the account his former em- ployer”. I I do dissent because not think we can 1 421.29(1) (a) (Stat [a]). MCLA Ann 1968 Rev § 17.531[1] § 421.29(3) (Stat 421.29(1) 17.531[3]).
2 MCLA Ann Rev 1968 § § § (Stat MCLA (e) [e]). 1968 Rev Ann 17.531[1] § Ann (Stat 17.534[1]). MCLA 421.32a Rev by Levin, the de question; reach the meritorious properly of March from which no termination final, is, by became thereupon taken judicata res and collateral reason of the doctrines ***5 collateral attack.6 estoppel,* subject The March of the commission Murphy’s him his and that of an offer ployer requalified refusal of employment because he wished to re- Michigan main in Kentucky did not him. Man- disqualify ifestly, questions upon of the effect Murphy’s right benefits under the receive act Michigan Kentucky, move to his employment there, and of his refusal of employment Michigan were all involved in and decided the not appealed and, therefore, final determination March 13. Roman points Cleanser out that under 32a7 “the * # * *11 may,
commission reconsider good cause, any prior determination or redetermination after the period has and a 15-day expired issue redeter mination affirming, or the modifying reversing prior or determination redetermination”. (Emphasis sup plied.) It contends that the redetermination of 5 judicata of res The doctrines collateral estoppel apply and to ad adjudicatory ministrative determinations particularly nature where, here, appeal as the a of provided method is and it is clear that it was legislative intention to make the determination in the final absence appeal. OAG, 1967-1968; 4628, p of an (March 1968), See No 217 application which visions appeal pro discusses the of these to the doctrines employment security act, of appeal the the act under which this arises. 6 majority holding may cite cases appeal that on a con- court questions properly preserved below, sider but those statements appeal judicata, were on res made cases direct where no issue of finality presented. or estoppel, collateral was this is noteworthy In connection it that affirmed the board timely protest the decision of the referee been found that had who no “consequently, the March determination made from 13 and separation accept the issue as the to claimant’s failure to and separation the further work the at time of not before such referee at this time”. 7 (Stat 17.534[1]). MOLA Ann 421.32a 1968 Rev App 155 29 Levin, now be- court and circuit to the (appealed
June within the is court) that from us on fore determination thus, the and, language of ambit this res of doctrines the protected 13 is not of March estoppel. collateral and judicata June red however, clear, it is I-think issues of “reconsideration” a was not etermination8 response made in rather but decided, already under § statutory obligation commission’s to had been there whether determine to the act9 of (d) Murphy’s right affecting law or of of facts change a checks. benefit receive continue check benefit each the issuance 32(d), Under § re- to a entitling a determination is current employee’s former determination may, A redetermination qualification. and eligibility a claim that there upon any at obtained thus, be a But, law. absent of facts or of a change been has decided law, questions already of facts or change unless “for cause” reopened not be may 32a.10 under § “reconsiders” commission is- 32(d) reopens If redetermination every original upon resolved sues previously made should no mination was, during fortunate. mination Ann 1968 Rev § paid period also, the check qualified for 333 US consideration of (1) a reconsideration [10] redetermination The use “The Compare 46 Am as are affected the doctrines of and a issuance as whether, of the same Jur provided (68 the commission benefits, Commissioner a 2d, Judgments, 17.534[d]). S Ct compensable period, of each question as to such because of an issue res subsection such term, “redetermination”, benefit check shall be considered longer adjudicated judicata as to of a eligiblity protest.” MCLA L Internal Revenue v. Sunnen employer upon Ed later weeks 421, p already the claimant change of fact or 21(a) operative, and collateral 898), discussing covered as to may protest decided and qualification thereby, receipt receiving the check earlier confusing benefits 421.32(d) estoppel bar law, by requesting describe of a the extent (2) eligible period; as to a decision a deter- still a and un- copy of (1948), deter- (Stat both such see, *12 un- re Boman Cleanser by Levin, 32a, the limitation that providing then eligibility, expiration 15-day a after the reconsideration be may. only good made cause appeal period least insofar shown, would, employer-sought at as concerned, practical are little redeterminations If rule, that were the whenever a significance. issues, benefit check former employer, by simply a pursuant redetermination to subsection requesting all could rehash issues (d), resolved determination without cause original showing good for reconsideration.
How distinguish then are we to a redetermination of an original determination —a reconsideration— from a redetermination of a check determination when redetermination is made after the issuance of a would, benefit check? It of course, our simplify if task the commission would state in so many words in the a redetermination whether it is “reconsidera- tion” of the original determination cause shown or whether is it made mandatorily sub- section (d) only relates to a later check de- termination.
A benefit check was issued to William J. Murphy on May 1, 1968. The commission’s redetermination of June 13 states on its face that it redetermines (i.e., determination of 1May the issuance of May 1 check, which by law is treated aas determination) —the original March 13 determination ad- verted to. Merely because the June redetermina- tion reiterates the continuing refusal Murphy of employment outside did not him disqualify from receiving benefits does not mean issues decided March were “reconsidered”. There had been no change law, fact or of and in that context restatement original March 13 determination as to the effect of refusing employ- *13 Mich 155 App
170 by Levin, indicate that the ment outside does On the commission. by was reconsidered question decided redetermination contrary, the the June therefore, and, had changed that simply nothing receive was entitled to continue to benefits. com whatsoever that the There is no evidence original for the reopening mission found cause good March 13 determination.11 Absent affirmative ev redetermination, idence June 13 mandato that the be made under subsection as to rily required (d) the check determination of also May 1, represents a by good reconsideration the commission for cause of the original 13, determination of March we have no basis for when that the commission is concluding sued the redetermination anything it issued other than a redetermination mandatorily-required 1 check or it did more than May to determine that there had been no change law or fact a discontinuance of the requiring benefits which it had on March 13 decided was en titled to receive. there no basis for Accordingly, concluding that the commission found cause good for reconsidering or that it did in fact reconsider been discovered. mination of March 13 was issued. Reconsideration Merren, or corrected information on the basis of facts which lateral Court before the March situations when 383, at the ing has come to Merren employ the March Michigan Supreme statute, Commission affirmed estoppel principles. which was decided majority v. of Roman Cleanser and which was decided light through Employment Security by 13, (2) (1) regulation Merren either of fact or of law which would (1967 ACS, p 4356.) opinion, determination, as an an interested equally-divided no fault of his own Court on March determination either was not or exception was decided (3) determination was [4] our Court an administrative party (2) sought provides Court the commission has additional 4, 1968, general has by were not available to in 380 our Court in 1966 and long before newly this case. res i.e., (1) (1966), issued, nothing good discovered material by judicata clerical error has before the commission justify reopen- cause includes 240, 3 Mich cause Except the deter- Supreme and col- referred new him left by Bayer County Macomb Sheriff 13; March those the issues decided issues could not reconsidered on their merits appeal board or the circuit court.
BAYER v. MACOMB COUNTY SHERIFF
Opinion of the Court Deputy’s 1. and Sheriffs Constables — Misconduct —Sheriff’s Liability —Statutes. hiring deputy A sheriff’s aof vicious not actionable itself. Deputy’s 2. Sheriffs and Constables — Misconduct —Sheriff’s Liability Battery. and —Assault Alleged battery assault deputy upon committed sheriff plaintiff county jail while he awas inmate was action deputy; was, of the statute, sheriff not liable for the wrong (MOLA 51.70). § Deputy’s 3. Sheriffs Constables — Misconduct —Sheriff’s Liability Respondeat Superior. — responsible A sheriff is not respondeat under the doetrine of superior acts, deputy’s defaults, for his or com- miseonduet mitted in deputy’s the course of (MCLA 51.70). duties 4. Sheriffs and Constables —Counties. department
A agency sheriff’s county (Const is an of a 1963, 7, 6). art References for Points in Headnotes [1-3, 9,10] Jur, 41 Am Prisons and Prisoners 13. §§ liability Civil sheriff charged other keeping or officer with jail prison injury prisoner. for death or 14 ALR2d 353. Jur, Municipal Corporations seq. 38 Am et [4] [5,7, [6] 620§ Sheriffs, Jur, Police, seq. Am47 et and Constables 158§ Appeal Am Jur 2d, and Error