with whom TAYLOR, J., concurs, dissenting.
I am unable to concur in the majority opinion.
The' question presented in this proceeding is a determination of whether or not the claimant Mandes was discharged by the Sidney Mining Company for misconduct rendering him ineligible for employment security benefits. Claim for benefits having been denied, the matter was heard by the Appeals Examiner for the Employment Security Agency.
The claimant, being affected with silicosis, had been given light surface work and had been paid the wages of a miner for a period of time prior to his discharge. The Company had furnished him a place where he could batch, and it plainly appears that the claimant was carried on the payroll because of his condition and satisfactory work for a prior period of time. He performed various odd jobs and during the temporary disability of a hoistman was asked to operate a hoist on the 500 ft. level, which place of employment the Appeals Examiner, on competent evidence, found to be a dry and well ventilated station, not exposing him in any way to further silicosis infection.
As a safety measure it was necessary that a hoistman remain at this station at all times. Claimant operated the hoist in question for about three weeks. Then without notice to the employer, the foreman, or anyone else, at the lunch hour in the middle of his shift, claimant abandoned the job, left the location in which he was working, and the hoist unattended. When asked by the foreman why he was not at the hoist claimant:—
“brusquely replied that he would not operate the hoist any longer and he wasn’t supposed to work underground. He gave no further reasons or explanation. Claimant was given three opportunities to change his mind and return to the hoist. Upon his continued refusal to do so he was informed that his services were terminated and to pick up his time at the office in town.”
The Appeals Examiner concluded that the employer was entitled to some explanation or claimant’s reason for not operating the hoist and, if reasonable, to make different arrangements for its operation; that
*30“claimant did not do this, but showing a disregard for a supervisor’s authority, bluntly and without further explanation, refused to perform his duties as assigned, which could have placed his employer in a very embarrassing position.”
The Examiner concluded:
“A foreman must be in a position of enforcing some respect from his immediate employees, in order that the work in his department can be satisfactorily carried on. If all his subordinates felt free to speak to him in the vein employed by the claimant, we can easily understand that the discipline and morale of this particular department might show a marked deterioration over the course of time. There is nothing in the evidence to indicate that the work being done by the claimant, at the time of his discharge, was in any way affecting his health. We have every reason to believe, considering the past work history of the claimant, that the order given by the mine foreman was reasonable and could have been performed by the claimant. Failure of the claimant to follow through convinces us that the employer was justified in discharging him.”
The employer’s conduct was not arbitrary, but its order was proper and legitimate, and should have been complied with by claimant. •
The findings and decision of the Board, from which this appeal is taken, confirmed the decision of the Examiner, and from the evidence and the Examiner’s findings, the Board found that claimant had previously stated he would work on the hoist until the regular hoistman returned; that the hoist operation was an extremely simple procedure and the place where the hoist was located was dry and well ventilated, and that the place where he was asked to work in nowise was dangerous to claimant’s health, and concluded that claimant had wilfully failed to produce work which might be reasonably expected of him, and such wilful failure amounted to misconduct.
The excuse given by claimant for leaving the hoist, when it was imperative that it should be attended, was because of his silicosis condition. This condition had not arisen suddenly, nor was it aggravated in any degree by the operation of the hoist.
The Examiner and the Board are the fact finding body in this proceeding, and it is not, or should not be, the province of this court to make findings contrary thereto, when supported by substantial evidence, as is the case here.
Misconduct, by the provisions of section 72-1366 I.C., makes claimant ineligible for the benefits claimed. The statute provides the eligibility of a benefit claimant, and subdivision (f) reads:
“His unemployment is not due to the fact that he left his employment vol*31untarily without good cause, or that he was discharged for misconduct in connection with his employment; *
The majority opinion reads into the act “wilful” 'misconduct.
If claimant refused to obey a legitimate, proper order, it necessarily follows that the misconduct was wilful. It does not seem to me necessary for the one resisting payment of unemployment benefits to have to prove affirmatively, beyond a reasonable doubt, or to a certainty in every particular, that a claimant is ineligible within the provisions above quoted. Wilfulness must be determined by claimant’s external acts and conduct. What he might have had in his mind to do other than what he did, we do not know.
I think the majority opinion reads into the act something the legislature did not intend. The legislature declared in no uncertain terms that the purpose of the law is to provide “for the benefits of persons unemployed through no fault of their own”. Section 72-1302 I.C. The findings of the Board and the Appeals Examiner, under circumstances presented, are fully sustained by the evidence and are binding on this Court.
This Court should not re-examine the evidence for the purpose of reaching a conclusion different from that of the fact finding body, when its findings and conclusions are supported by the evidence.
A claimant for benefits, who wilfully fails to produce work which might be reasonably expected of him, or who is discharged for failing to carry out a reasonable, proper order in connection with his employment, or one who wilfully and voluntarily abandons his job without notice or without excuse, is guilty of wilful misconduct, his discharge proper, and he is not entitled to benefits provided for one who, without fault of his own, is temporarily out of work.
The Act providing unemployment benefits in certain cases, and under prescribed conditions, was intended to apply to, and should be construed to encompass,- a person able and willing to work, and who is unable, through no fault of his own, to obtain employment.
It seems to me the majority opinion lets the bars down and opens the flood gates for unauthorized claims. Such a holding is detrimental to the employees as well as the employers, and I feel the majority opinion is not in accord with the weight of authority in similar situations, and that the Order of the Board should be affirmed.