Bagwell Electric Steel Castings, Inc. v. State Department of Industrial Relations

On Rehearing

JOHNSON, Judge.

The appellant points out to the court that our dicta in the next to the last paragraph of the original opinion concerning Title 26, Section 214, subd. C(l) indicates that written notice must be given whether the misconduct contemplated by the statute is actual or threatened. It is urged that common sense indicates that it is only after threatened misconduct, and not actual misconduct, that written notice must be given. With this we agree. However, under the view we take of this case, it is unnecessary for us to construe this part of the statute.

Appellant, in his brief accompanying his application for rehearing, sets out at length a portion of the trial concerning whether the defendants, Bryant and Isbell, should have been required at the trial to prove their availability for work. Looking at this additional part of the record, we leave our decision unaltered for we agree with the trial judge, who, during the course of the trial, stated:

“It is rather an odd situation here, for instance, you could have this sort of a thing. Suppose here, one of these two, according to the testimony was not available at all for work because of some situation peculiar to him, or what he individually had chosen to do, and suppose in his class on that list of employees, suppose there was ten or twelve others, that wanted to get the same ruling that he gets. Suppose this Court turns him down because he wasn’t available, because of his own idiosyncrasy, that would be a strange thing, that the other ten, because of that thing there. Suppose he was available and the other ten were not, why should they get money because of his availability, rather than their own. It is evidently concluded that the implication to that agreement, to determine under the law, that the law and such— that these men are not entitled to recover. If I determined the law as such under the general principle, that they are entitled to recover, it seems to me inevitable that it was in the sense that I should then so hold, and assign the cases back to the department then to be calculated from the record, in their position of signing up and availability in that sort of a thing, and what the amount is to be paid to them, and I think it is inevitable and I so hold and counsel for the employer has exception to that holding.”

Upon reconsideration, we are still convinced that the similarities of this case and T. R. Miller Mill Co. v. Johns, supra, are the material considerations and that the differences are immaterial.

Application for rehearing overruled.