Compton v. Shopko Stores, Inc.

*628SHIRLEY S. ABRAHAMSON, J.

(dissenting). The majority concedes that this case turns on the resolution of a question of fact, namely when did the employment terminate, on December 27, 1974, when the employee’s services ended or on February 22, 1975, the last day for which severance pay was paid. Resolution of this factual issue depends on determining the effect of the employer’s awarding the employee severance pay. There was no contract policy or guideline concerning severance pay.1 Thus whether severance pay extended the period of employment depended on the intent of the employer in awarding severance pay.2

The majority opinion concedes that the trial court made findings of fact that the employee’s employment was extended to February 22, 1975 by the granting of severance pay.3 The majority does not conclude that *629the finding- is either unreasonable or is against the great weight and clear preponderance of the evidence. Nevertheless the majority overturns the trial court’s findings of fact by labeling them conclusions of law, saying “It is our opinion that in this case the finding of the trial court is based upon undisputed evidence and therefore such finding is essentially a conclusion of law.”

This court has not held that in every case involving undisputed evidence, findings of fact become conclusions of law. This court has said that where the evidence is undisputed and “but one inference can be reasonably drawn therefrom, a question of law is presented.” Cutler-Hammer, Inc. v. Industrial Comm., 13 Wis.2d 618, 632, 109 N.W.2d 468 (1961). As Justice Connor Hansen pointed out in Voc. Tech. & Adult Ed. Dist. 13 v. ILHR Dept., 76 Wis.2d 230, 239-240, 251 N.W.2d 41 (1977), where the evidentiary facts are not in dispute but permit different inferences, the drawing of one of such inferences is a finding of fact. See also, Universal Foundry Co. v. ILHR Dept., 86 Wis.2d 582, 589, 273 N.W.2d 324 (1979); Sauerwein v. ILHR Dept., 82 Wis.2d 294, 299, 262 N.W.2d 126 (1978); Milwaukee Co. v. ILHR Dept., 48 Wis.2d 392, 399, 180 N.W.2d 513 (1970); Liebmann Packing Co. v. Industrial Comm., 27 Wis.2d 335, 339, 134 N.W.2d 458 (1965); Cheese v. Industrial Comm., 21 Wis.2d 8, 15, 123 N.W.2d 553 (1963).

Chief Justice Hallows, writing for the court, explained that “ ‘As a matter of law’ merely means no other factual finding could be reasonably drawn from the evi-dentiary facts.” Kress Packing Co. v. Kottwitz, 61 Wis.2d 175, 179, 212 N.W.2d 97 (1973).

Stating this rule in another way, this court has said:

*630“Inferences to be drawn from the evidence are functions of the trial court. The drawing of reasonable inferences from the evidence presented constitutes part of the function of fact finding which is vested in the court or in the jury. The credibility of witnesses and the weight to be given to testimony are within the province of the trier of facts. Where testimony is not in dispute as in the instant case, but permits the drawing of different inferences therefrom, the drawing of such permissible inferences is an act of fact finding.” Estate of Brandenburg, 13 Wis.2d 217, 225, 108 N.W.2d 374 (1961).

See also, Estate of Beale, 15 Wis.2d 546, 556, 113 N.W.2d 380 (1962); Ivers & Pond Piano Co. v. Peckham, 29 Wis.2d 364, 371, 139 N.W.2d 57 (1966); Klein-Dickert Oshkosh, Inc. v. Frontier Mortgage Corp., 93 Wis.2d 660, 287 N.W.2d 742 (1980).

The cases cited by the majority do not support its statement that when the trial court’s finding is based upon undisputed evidence, the finding becomes a conclusion of law and this court is not bound by a finding of the trial court. The Teledyne Case, 65 Wis.2d 557, 566, 223 N.W.2d 586 (1974), cited by the majority, involved judicial review of an administrative agency decision which applied the law to a particular fact situation. The application of the law to a fact situation has typically been labeled a question of law. See Nottleson v. ILHR Dept., 94 Wis.2d 106, 287 N.W.2d 763 (1980). In the Browndale Case, 60 Wis.2d 182, 199, 208 N.W.2d 121 (1973), cert. denied, 416 U.S. 936 (1974), also cited by the majority, this court concluded that the case turned on the interpretation of an ordinance. Interpretation of a legislative enactment is conceded to be a question of law. The WXIX Case, 38 Wis.2d 278, 281, 156 N.W.2d 451 (1968), cited by the majority, relies on the Boutelle Case (also cited by the majority), 34 Wis.2d 665, 673, 150 N.W.2d 486 (1967), which in turn cites Vogt, Inc. v. International Brotherhood, 270 Wis. 315, 321i, 71 N.W.2d 359, 74 N.W.2d 749 (1955). In Vogt this court care*631fully discussed the difference between questions of fact and questions of law. The Vogt opinion makes it clear that a question of law is presented when the facts are undisputed and only one inference can be drawn.4 The court also concluded that a question of law is presented if the court is construing a written instrument or written pleadings and affidavits on which no parol testimony was heard. 270 Wis. at 321j. In those circumstances the appellate court need not rely on the trial court because both the trial court and appellate court can look at the documents; the appellate court need not defer to the trial court because the trial court had no opportunity to observe the witnesses. In the Boutelle and the WXIX cases a contract was being interpreted; in Vogt, pleadings and affidavits were being interpreted. Interpretation of a legal document in which there is no ambiguity requiring introduction of extrinsic evidence raises questions of law. Edlin v. Soderstrom, 83 Wis.2d 58, 69, 264 N.W.2d 275 (1978).

In the instant case the court is not dealing with a question of law, such as construing legislation or a written document or applying the law to the facts. The court is determining whether the employer intended the payment of severance pay to extend the employment to February 22,1975.

There are a few cases not cited in the majority opinion in which this court has said that where the material facts upon which the issue must be resolved are not in dispute this court does “not consider . . . [that] the finding of the trial court is so conclusive as it is in cases *632where there is a clear conflict of evidence. Weigell v. Gregg (1915), 161 Wis. 413, [416], 154 N.W. 645.” Saylor v. Marshall & Ilsley Bank, 224 Wis. 511, 517, 272 N.W. 369 (1937). See also, General Automotive Mfg. Co. v. Singer, 19 Wis.2d 528, 530, 120 N.W.2d 659 (1963). However in these cases this court reviewed the trial court’s findings to determine whether the findings were reasonably deduced from the evidence. The majority opinion does not, and cannot, conclude that the trial court’s findings in the case at bar are not reasonable.

I conclude that more than one reasonable inference may be drawn from the documents and the testimony regarding the termination of employment and the severance pay. I would hold that the question presented in the case, i.e., the date on which the employment was terminated for purposes of payment of the bonus, is a question of fact for the trier of fact who saw and heard the witnesses and questioned them. Because the trial court’s findings of fact are reasonable and are not against the great weight and clear preponderance of the evidence, I would affirm the judgment of the trial court.

The trial court found:

“13. That as of the date of his termination of December 27, 1974, there was no written policy or any guidelines adopted by Shopko with respect to severance pay or vacation pay;”

A person’s intent in doing an act is a question of fact. Voc. Tech. & Adult Ed. Dist. 13 v. ILHR Dept., 76 Wis.2d 230, 246, 251 N.W.2d 41 (1977); Liebmann Packing Co. v. Industrial Comm., 27 Wis.2d 335, 339, 134 N.W.2d 458 (1965); Cheese v. Industrial Comm., 21 Wis.2d 8, 15, 123 N.W.2d 553 (1963).

The trial court made the following findings of fact, inter alia :

“27. . . . The court feels at this time that the better conclusion to be drawn from the evidence is that by electing to grant Mr. Compton’s severance pay to include. February 22, 1975, by its deliberate choice, Shopko, Inc., decided to continue Mr. Compton on the payroll and employed on that date;
“28. That notwithstanding the fact that he was to be entitled to vacation pay over and above that, that is, the availability of vacation pay, in the judgment of this court would not and could not in any event extend the period of his employment;
“29. Whether by design or otherwise, Shopko, Inc., determined that he was being paid severance pay to February 22, 1975, which, incidentally, seems to coincide with the end of the fiscal year of Shopko, Inc.;
*629“30. That this court can read into and can find in this case this was deliberately done by Shopko so as to permit Mr. Compton to be included in the executive bonus plan that might be payable at the end of the fiscal year 1974-75. And I so find.”

“We are of the opinion that the court should have made the finding requested by the plaintiff, and that, since the facts as to which the request was made are undisputed and the inferences are only one way, we should reverse for error in so refusing. 5 C. J. S., Appeal and Error, p. 802, see. 1675. If, however, we may not do that, we are at liberty to and should supply the finding.” Vogt, Inc. v. International Brotherhood, 270 Wis. at 321i.