Summary
In Carlton v. Division of Employment Security, Mo.App., 246 S.W.2d 388, one of the present appellants was permitted, without discussion, to appeal from the allowance of a claim for unemployment compensation.
Summary of this case from Dubinsky Bros., Inc. v. Industrial Commission of Missouri ex rel. RoseOpinion
No. 28305.
February 19, 1952.
George Schwartz, Jefferson City, for appellant.
J.B. Schnapp, Fredericktown, for respondent.
This is a proceeding instituted by Rose M. Carlton under the Missouri Unemployment Compensation Law. The claim was filed with the Division of Employment Security on April 19, 1950. Said claim was disallowed by a claims deputy on the ground that claimant was not available for work as required by R.S.Mo. 1949, § 288.110, V. A.M.S. Claimant appealed from the decision of the claims deputy and a hearing was had on May 22, 1950, before an appeals referee of the Division of Employment Security. The latter, on June 2, 1950, rendered a decision affirming the determination of the claims deputy. Claimant thereafter, on June 3, 1950, applied to the Industrial Commission for leave to appeal from the finding and determination of the appeals referee, but the application was denied. Claimant then filed her petition for review in the Circuit Court of Madison County, and that court reversed the decision of the Industrial Commission and remanded the cause to the latter for further proceedings. This appeal from the judgment of the Circuit Court was then taken by defendant Division of Employment Security.
Respondent is a married woman and the mother of two children aged twelve and fifteen. She resides in Fredericktown, Missouri, which is a town of about 4,000 inhabitants. Prior to June 6, 1949, respondent was employed by the Spalsbury-Steis Shoe Company and had been so employed "off and on" for the previous ten years. Respondent testified she did "vamping", which was "sewing the quarter to the vamp on the shoe." Respondent's earnings at the shoe factory were $35 to $40 a week. Respondent has been unemployed since June 6, 1949, the date she quit work at the shoe factory.
Respondent left her employment on the advice of her physician, who had been treating her for a nervous condition for two years. She testified: "He (doctor) said it was just my nerves, too much noise and too much rushing. I worked on a machine and he said by working so fast and so much noise it affected my nerves. * * * I had nervous headache, I had headache about every day. * * * He said I could do any work other than shoe factory. * * * He said I might some day be able to go back over there but not anyway soon." Respondent continued to be treated by her doctor until September or October, 1949. She stated that at that time, "I asked if he thought I would be able to go back to work. He said, `Not in the factory for a while.' * * * He said it would maybe be two or three years yet." She further testified:
"Q. You haven't felt like trying to get in the factory? A. I don't think it would be much use to try right now because they laid off for two weeks, they laid off the whole factory and they laid off experienced employees they had for several years, and I don't think there would be much use to try right now. When I quit I lost my seniority and I feel like I didn't have any. Those that's got seniority there would come before I would. * * * I don't know if I could do any other factory work or not, but the doctor definitely says I must not work in the shoe factory for a while yet. I'd be willing to try other factory work if we had factories to try in, but there isn't any other factory down there."
Respondent further testified:
"Q. Is there any work in Fredericktown other than shoe factory? A. There isn't much of anything but restaurant work or if you happen to be lucky to find a job in a store. * * * I tried all places down there, restaurants and stores. * * * I went to all the stores, put in applications, and asked if they had any openings and when they thought they would.
"Q. What stores? A. Federated * * * in Federicktown. It's a clothing store.
"Q. When did you ask for work there? A. I can't tell exact dates. It's been several times.
"Q. When was the most recent time? A. About two weeks ago. * * * They usually have three clerks besides the man who owns it. * * * I talked to the man that owns it, Mr. Andrews. * * * He said he didn't have any openings right now. If he had any he would let me know.
"Q. Where else did you go? A. Fair Department Store and Home Supply Company. * * * It's been about three weeks since I was there, I think. They don't have no openings, they been laying off some clerks. * * * They usually have three or four.
"Q. And what about this Home Supply Store, what kind of place is it? A. Well, it's — they have tools, you know, hardware, light bulbs —
"Q. Is it a hardware store? A. Yes.
"Q. When did you ask for work there? A. I asked sometime last month, I don't remember the date. * * * I tried at High School Grocery, owned by Cletus Testrow. * * * I asked him about a job just the other day. * * * He said he didn't need anyone now, his wife was taking the place of the clerk that had quit.
"Q. Were there others? A. B. F. Goodrich * * * they have tires and hardware too.
"Q. Do they hire women clerks in there? A. They do once in a while.
* * * * * *
"Q. What about restaurants? A. Well, I haven't been to the restaurants because they usually run ad in the paper when they need help, and when they hire help they don't pay very much. * * * They say they don't pay over $18 a week. I don't know if that's correct.
"Q. Could you work for $18 a week? A. I might if it was all I could find.
"Q. You haven't been to any of the restaurants though? A. No.
"Q. What do they pay in these stores? A. Well, I don't know just exactly what they do pay, but they pay more than restaurants do, I'm sure.
* * * * * *
"Q. Are those all the stores in Fredericktown? A. Well, there's not many more than that. Schwarner's, it's a clothing and grocery store combined. * * * I talked to them but they just hire relations in there."
On the foregoing evidence, the appeals referee made the following finding and decision:
"Findings:
"The claimant has worked in the employer's shoe factory in Fredericktown, Missouri, off and on over a period of ten years and was last so employed from November, 1945, to June 6, 1949. She earned approximately $35 per week. She testified that she had suffered from nervousness for about two years and had received treatment from a chiropractor, who attributed her condition to the noise of the factory and advised her to quit. Since then she has sought work in a number of small retail stores in Fredericktown. She testified that there are no other factories in Fredericktown and no opportunities for employment except in the stores and restaurants. She has not asked for work in the restaurants because she does not consider the prevailing pay for such work, which is about $18 per week, to be sufficient. In a previous benefit year she claimed and received benefit for 20 consecutive weeks ending March 18, 1950.
"The Missouri Unemployment Compensation Law requires a claimant to be able to work and available for work in order to receive benefits, and provides that no person shall be deemed available for work unless he is and has been actively seeking work. The claimant has been unemployed since June 6, 1949. She is unable or unwilling to accept factory work in which she was previously employed. Since June 6, 1949, she has unsuccessfully sought work in a number of small retail stores in the community in which she lives. After approximately ten months of unemployment it should have been apparent to the claimant that she had no reasonable prospect of employment in the stores at Fredericktown and that she should have extended her search for work to other communities or other lines of work.
"The Referee does not believe that the claimant sincerely desires work or that she has made a reasonable effort to find work considering the length of her unemployment. The Referee therefore finds that the claimant has not been available for work.
"Decision:
"The determination of the deputy denying benefits is hereby affirmed."
It further appears from the record that respondent filed a claim for benefits under the Unemployment Compensation Law on November 2, 1949, claiming benefits through the week ending December 24, 1949, and that on said claim benefits were awarded her on January 20, 1950. The claim under consideration here was filed April 19, 1950, and said claim was continued through the week ending May 13, 1950.
The Circuit Court found that there was not sufficient, competent evidence in the record to warrant the said Industrial Commission and The Division of Employment Security in denying benefits to claimant, and that claimant was eligible for unemployment benefits under Missouri unemployment compensation laws on the 19th day of April, 1950, and thereafter. The award of the Industrial Commission was reversed and the cause remanded for further proceedings not inconsistent with the judgment.
It is urged by respondent that since she had been allowed benefits with respect to prior periods of unemployment, those benefits, absent a change of condition, should have continued until November 2, 1950, or until she used her maximum allowance of benefits or again became gainfully employed. It is our opinion that R.S.Mo. 1949, § 288.110, V.A.M.S., requires the filing of a claim for every period of unemployment and a finding as to claimant's availability for work in every such period. There is no merit to the point urged.
We are of the opinion that the trial court erred in holding as a matter of law that respondent was available for work and actively seeking work within the meaning of the Unemployment Compensation Law. Under respondent's evidence, the appeals referee could reasonably have found that respondent did not make a reasonable effort to secure suitable employment of a character which she was qualified to perform, hence was not actively in search of work. Said referee could also have reasonably found that respondent had unduly restricted her availability for employment in the area open to her. The finding of the appeals referee was, therefore, reasonable and not clearly contrary to the overwhelming weight of the evidence. Said finding should not have been disturbed by the trial court.
The judgment appealed from is reversed.
BENNICK, P.J., and RUDDY, J., concur.