Opinion
No. 6926.
December 6, 1950.
APPEAL FROM THE GREENE COUNTY CIRCUIT COURT, DIVISION 2, GREENE COUNTY, WARREN L. WHITE, J.
James H. Keet, Springfield, for appellant.
George Schwartz, John L. Porter, Jefferson City, for respondents.
This is an appeal from the judgment of Division 2, of the Circuit Court of Greene County. The petition alleged that the Industrial Commission of Missouri had denied plaintiff's application for an appeal from the decision of said Industrial Commission, holding that plaintiff was ineligible to be paid benefits under the Missouri Unemployment Compensation Law, and prayed the Circuit Court to enter an order declaring that plaintiff was entitled to the benefits claimed by him, to disaffirm the decision of the Commission and to remand the case to the Commission, for further proceedings, not inconsistent with the declarations of the Circuit Court.
Summons was issued and served. On May 7, 1949, the Industrial Commission filed its separate answer to the petition, admitting that plaintiff's application had been denied by the Commission and admitting that plaintiff was a resident of Greene County, Missouri. Such answer then denied each and every other allegation of plaintiff's petition and prayed that the decision of the Industrial Commission should be affirmed.
The case was heard in the Circuit Court on September 3, 1949, and, after submission of the evidence previously heard and the argument of counsel, the Circuit Court held that the award of the Industrial Commission was supported by substantial evidence. The Circuit Court therefore rendered judgment against plaintiff.
On September 13, 1949, plaintiff filed a motion for a new trial, which was later overruled. On December 17, 1949, plaintiff served notice of appeal to this Court. He was afterward granted, by the trial court, additional time within which to file his transcript on appeal.
The foregoing were all of the orders made in the trial court. The case was submitted thereupon the argument of counsel, and the evidence heard by the Appeals Referee.
On May 7, 1949, the Industrial Commission filed in the Circuit Court a full and complete record of the evidence of claimant and others, heard by the Appeals Referee, with his decision thereon. The first hearing was had before Referee F. L. Frost. There is no record of what the evidence was at that hearing. The claim of appellant was then allowed by Referee Frost. An appeal from his decision was taken by the employer to the Appeals Tribunal of the Industrial Commission. The claim was heard by Honorable J. A. Edwards, Appeals Referee, at Springfield, Missouri, on November 30, 1948.
Prior to his decision and at the hearing before Referee Edwards, Mrs. Vira B. Fredericks, the proprietress and employer, had testified to a conversation with claimant about his reported misconduct, in which, among other things, she said: "Now you will either have to do things around here the way we do them or else I will have to give you two weeks' notice." And she further testified that claimant then said: "You don't have to give me two weeks' notice at all," he said, "I will just quit right now. You can pay me right now."
Although the employer then threatened to give claimant two weeks' notice, she testified that she had no intention of discharging him at that time, and the Appeals Referee so found.
Section 9431, page 412 of Vol. II, of Laws of Missouri for 1947, Mo.R.S.A. § 9431, among other things, provides that an individual shall not be eligible to be paid benefits for unemployment, if such individual has left his work voluntarily without good cause attributable to his employment.
In Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, 662, the St. Louis Court of Appeals said: "If a particular decision is clearly contrary to the overwhelming weight of the evidence, the reviewing court may set the same aside, but in determining where the weight of the evidence lies, it must adhere to the rule of due deference to findings involving the credibility of witnesses, which have been made by those before whom the witnesses gave oral testimony." Citing many cases.
In his report to the Compensation Commission, J. A. Edwards, Appeals Referee, said: "It is impossible to reconcile the testimony. The Referee, after considering the evidence and observing the demeanor of the witnesses, finds that the claimant voluntarily left his work because he had been reprimanded because of alleged discourtesies extended to patrons of the employer."
It was this finding, though disputed, which the Compensation Commission held to have been supported by substantial evidence. The trial court had no right, as asked by claimant, to reverse the finding of the Industrial Commission, unless such finding was clearly contrary to the overwhelming weight of the credible evidence.
We cannot say that such finding was against the overwhelming weight of the evidence. Therefore, we cannot interfere with the judgment of the trial court, holding that it cannot say that the award of the Compensation Commission was not supported by substantial evidence.
We need not determine whether or not the other disputes, shown to have occurred between claimant and his employer, contributed to the loss of his employment, since both the Appeals Referee and the Compensation Commission have found that the unemployment of the claimant was voluntary. Such finding was supported by substantial evidence and must be approved.
The judgment of the trial court should be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.