Magner v. Kinney

Eberly, J.,

dissenting.

From the facts detailed in the record in this case, most of which are recited in the majority opinion, the following are to be kept in mind: The appellees, Magner, Snook and Wolff, were employees of the appellant, Fidelity Storage & Van Company, Inc., and members of Local Union No. 554, the Truck Drivers’ Union, a labor organization. So far as length and terms of employment are concerned, each was entitled to unemployment benefits under the terms of the Nebraska unemployment compensation law, unless disqualified by the restrictions contained in section 5 of that act (Laws 1937, eh. 108). On September 9,1938, due to a labor dispute between the representatives of the Fidelity Storage & Van Company and the labor union, of which appellees were members, these claimants voluntarily left their work and, because of a denial of their demands for a “closed shop,” thereafter for a certain period, and to an extent, participated in a strike called by that union. On January 3, 1939, appellees filed their claims for unemployment benefits, which were denied. On May 8, 1939, claimants again filed claims for unemployment benefits, which form the basis of the proceedings finally determined by the opinion adopted herein. Appellant’s brief informs us that “The Union continued to picket and harass appellant (Fidelity *132 Storage & Van Company) until in August, 1939, when it apparently abandoned the strike.”

The history of the enactments of the unemployment compensation law in Nebraska includes the following: The adoption of chapter 108, Laws 1937, approved with an emergency clause April 30, 1937. The adoption of chapter 56, Laws 1939, an amendatory enactment adopted with an emergency clause and approved June 5, 1939. The adoption of chapter 2, Laws 1940, Extraordinary Session, and approved with an emergency clause January 12, 1940; and the adoption of chapter 94, Laws 1941, approved with an emergency clause May 27, 1941.

It would seem that the causes of action here involved are for benefits accruing under the unemployment compensation law of 1937, on which suit was commenced on May 8, 1939, and would be in no manner affected by the provisions of the amendatory statute adopted and approved June 5, 1939, or any amendatory statute enacted subsequent thereto. Comp. St. 1929, sec. 49-301.

It would follow, therefore, that the terms of the unemployment compensation law of 1937 are exclusive and controlling in this case notwithstanding the provisions of section 19, ch. 108, Laws 1937. The conclusion follows that the reference to Comp. St. Supp. 1939, contained in the majority opinion, should be read in the light of that fact.

The legislative intent evinced by this enactment is the creation and establishment of a statutory trust fund in the manner directed, to be administered for the benefit of unemployed labor by statutory agencies designated, subject to and upon conditions as set forth therein. In effect, it vested employee beneficiaries with a cause of action to secure their rights thereunder for each successive week of unemployment suffered. And section 5, in effect, vested the employer with certain specific defenses as to the demands of such employees which, if sustained, resulted in the disqualification of such employees, but only for definite periods, from receiving benefits under the terms of the act. These included, among others, disqualification for benefits, “(a) *133 For the week in which he has left work voluntarily without good cause,” etc. “ (c) If the commissioner finds that he has failed, without good cause, either to apply for available, suitable work, * * * or to accept suitable work when offered him,” etc. “(2) * * * (d) For any week with respect to which the commissioner finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.” It will be noted that these several defenses (as well as the others set out in section 5) thus created by statute are separate, distinct, and not inconsistent one with the other.

As to legal remedies which the foregoing legislation may necessarily imply, it may be said that under our Civil Code we have, “but one form of action,” which we call a “civil action.” Comp. St. 1929, sec. 20-101. And when, as here, a special or general act vests a right of action without specifying the mode of proceeding, as far as may be consistent with such statute and practicable under the Civil Code, “the proceedings shall be conducted in conformity thereto.” Comp. St. 1929, sec. 20-2226.

Recurring to the Civil Code we find the applicable provision to the present controversy is that the employer, a defendant, “may set forth in his answer as many grounds of defense * * * as he may have.” Comp. St. 1929, sec. 20-812. See Maier v. Romatzki, 95 Neb. 76 , 144 N. W. 1036 ; Equitable Life Assurance Society v. Wert, 102 Fed. (2d) 10.

In the absence of statute, an enlightened public policy would dictate that disputes and also agreements between employer and employee should be determined promptly and fully, to the end that turmoil be ended, production be continued, and public interest be advanced. The nature of the relations here involved necessitates the application of equitable principles in determination of the issues which may arise in the trial of a controversy thus created. And where the defenses provided for by section 5 of our unemployment compensation law (1937) have been raised by the employer and issues taken thereon by the employees, it follows that *134 upon due proof adduced the several issues should be fully and finally determined and further and future disputes and delays avoided. Parties are entitled to this as a matter of right. Sutherland v. Rose, 47 Barb. (N. Y.) 144.

The situation clearly invokes the equitable rule that, “The decree should respond to all the pleadings and determine all the issues.” 21 C. J. 670. See, also, authorities collated in notes 8 and' 9, 21 C. J. pp. 670-672.

This jurisdiction has long been committed to this principle which was announced by Sullivan, J., in Clark v. Neumann, 56 Neb. 374 , 76 N. W. 892 : “The findings and decree in an action in equity should respond to- all the material issues presented by the pleadings.”

These principles are applicable and controlling in the instant case. The pleadings and proof liberally construed clearly establish that claimants voluntarily left their work without good cause, unless the refusal of the employer to grant their demands for a “closed shop” may be deemed “good cause.” The evidence is undisputed that negotiations between the truck drivers and the employer which had continued from June, 1938, to September, 1938, had succeeded in eliminating every controversy between them save the issue of the “closed shop.” The parties were otherwise in entire accord when on the latter date claimants, with the rejected claim for a “closed shop” as the sole reason for their action, voluntarily quit work. The same question is substantially presented and enters into the controversy as to whether claimants have “failed, without good cause, * * * to accept suitable work when offered” to them. This question the terms of the statute by fair implication answer with definiteness and certainty. At the very least the parties to this litigation are entitled to have this matter determined, and the controversy as an entirety settled as of the date of the institution of the proceedings, that their right to enjoy each successive weekly benefit as it ripens and accrues may not be delayed or interfered with. In principle it cannot be gainsaid’that a tribunal administering relief in accord with equitable principles is possessed of power, and *135 is enjoined with the duty, when it has acquired jurisdiction, to consider and determine all rights of the parties relating to the subject-matter, and to enter a decree that will finally determine them, to the end that multiplicity of suits may be avoided and litigation may cease. In the instant case the principles of equity should be carried out by the determination of all the issues actually presented and tried by the parties to the proceeding. Thus only may claimants know their rights and the administrators of this act be enabled to perform their duties with promptness and correctness in the distribution of the benefits intended.

This conclusion has added force when we reflect that the adjudication as made by the majority opinion based upon the sole ground that because of an existing strike a “stoppage of work” exists which operates to disqualify claimants has no force and potency after such “strike” has ceased and the “stoppage of work” has ended. In re Steelman, 219 N. Car. 306, 13 S. E. (2d) 544 .

After such event the parties to this litigation will necessarily have to recur again to the provisions of section 5 to determine the questions of disqualification then existing. These questions, subject to the time limitations, will necessarily include whether claimants “left work voluntarily without good cause.” Such questions should have been determined in the present proceeding, but the majority have postponed their decision to the uncertain future when evience may be hard to secure and recollections are not vivid. Obviously, at best, we thus have another instance of compelling unnecessary litigation, of justice delayed, which results all too often in justice denied. I, therefore, dissent from the disposition made of this case by the majority opinion, as a job lacking in full performance, and a repudiation of the solemn duty enjoined on this court of awarding relief full, complete and final.

Messmore, J., concurs in the dissent.