Hinkle v. Lennox Furnace Co.

83 N.E.2d 521, 150 Ohio St. 471, 150 Ohio St. (N.S.) 471, 38 Ohio Op. 323, 1948 Ohio LEXIS 402

Opinion

By the Court.

The Court of Appeals having affirmed the judgment of the Court of Common Pleas wherein the decision of the board of review was reversed upon the ground that its decision was “manifestly against the weight of the evidence,” the single question presented is whether as a matter of law under the facts disclosed by the record in this case Hinkle was not available for employment.

The test to be applied in determining whether a claimant is eligible for unemployment compensation is prescribed by Section 1345-6 a, General Code, as amended (119 Ohio Laws, 836) effective October 1, 194Í, which provided as follows:

“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and

“(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act. ’ ’

No material amendment has been made of the above-quoted portion of the statute.

By the amendment, above referred to, the first test instead of being “capable of and available for work” as theretofore provided, was materially amended to read: “able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted.” (Emphasis supplied.)

The record in this case discloses substantial evidence that although the claimant was not able to perform the same work as theretofore which was in his usual trade or occupation, he was physically able to' perform such work as that of a watchman and also of checking materials and duties of like character, and was, therefore, available for work in other occupations for which he had previously demonstrated his fitness. '

It follows that the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas should be, and hereby is, affirmed.

Judgment affirmed.

Weygandt, C. J., Matthias, Hart, Zimmerman,. Sohngen and Stewart, JJ., concur. Turner, J., dissents.