#### The Brown-Brockmeyer Co., Appellant, *v.*Roach et al., Appellees.

(No. 1892

Decided November 30, 1946.)

*17
      *Mr. A. K. Meek,*for appellant.

*Mr. Hugh 8. Jenkins,*attorney general, and *Mr. John M. Woy,*for’ Unemployment Compensation Board of Review.

.Wiseman, J.

This is an appeal on questions of law. from a judgment of the Court of Common Pleas of Montgomery county, affirming a decision of a referee of the Unemployment Compensation Board of Review, allowing a claim to an employee, John Michael Roach.

The claimant is over 64 years of age and for 40 years was employed as a salesman. During the war. emergency he lost his job as a salesman and took several other jobs in and around Dayton. He built up his unemployment record by being employed as an inspector at the Master Electric Company from August 28, 1943, to November 24, 1943, when he left such employment because of illness. He became re-employed December 6,1943, and quit January 5,1944, when work in his department ran out and his employer sought to transfer him to another department. He was employed as a collector by the Evening News Publishing Company on January 12, 1944, and quit on January 27, 1944, because the position required him to do excessive walking. He' became employed as an inspector by The Brown-Brockmeyer Company on April 22, 1944, and quit voluntarily on July 28, 1944. Claimant testified he quit because, first, he planned to enter governmental service and, second, he was dissatisfied with, inspection methods used by the company. He applied for a governmental position but was rejected because he had high blood pressure. Thereupon, claimant made numerous applications for employment as a salesman, the type of employment in which he was most experienced. The record shows he reported weekly at the local *18office of the bureau since filing his claim and was unable to find work and had no offer of employment by former employers.

Because he quit his employment at the Brown-Brockmeyer Company he- was subjected to the penalty of being required to wait an additional three weeks before receiving benefits and the total amount of benefits he could draw was reduced to twelve times his weekly benefit amount, as provided by Section 1345-6 b c, General Code, as it existed under the 1943 amendment.

The referee- allowed the claimant benefits and the decision of the referee was affirmed by the Court of Common Pleas of Montgomery county. From that judgment an appeal has been taken to this court.

The appellant has filed numerous assignments of error, some of which are not urged. The gist of the contention of the appellant is that the claimant voluntarily quit his employment; that claimant having quit voluntarily, in the absence of a showing to the contrary, the presumption prevails that the same position is still open to him; and that, therefore, claimant cannot show, as required by statute, that he is unable to find employment.

To establish the validity-of his claim, the claimant must show that he has complied with Section 1345-6 a (1) (4) (5), General Code (120 Ohio Laws, 682), which provided:

*“a.*No individual shall be entitled to any benefits unless he or she

“(1) Has been employed by an employer (or employers) subject to this act in at least twenty calendar weeks within his base period, and has earned wages in his base period equal to not less than $160; * * *

“(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

*19“ (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.”

There is evidence in the record sufficient to support the finding of the court that the claimant has fulfilled the requirements of subsections (1) and (4). Has claimant shown he is unable to obtain work? The appellant -relies on *Canton Malleable Iron Co.*v. *Green,*75 Ohio App., 526, 62 N. E. (2d), 756, which held:

“When one qfiits his regular job or employment in the absence of a showing to the contrary the presumption must be that same is still open to him.”

That case is distinguishable from the instant case on the facts. In that ease the claimant on several occasions voluntarily walked off the job without notice to the employer and without just cause. On one occasion he was offered employment and returned to the job and worked for about eleven days and then quit again without notice to the company and without just cause. In that case the claimant did not submit any evidence of his inability to obtain work. The court on that state of facts held that there was a presumption claimant could continue to work at the same job and denied the claimant benefits.

In the instant case, the claimant gave notice to the company of his desire to quit, stating his reason, whereupon the company issued a separation • notice which was essential in order for claimant to secure employment elsewhere. Under this state of facts, no presumption arises that his former employment was still open to him.

' In the case of *Kut*v. *Albers*Super. *Markets, Inc.,*146 Ohio St., 522, 66 N. E. (2d), 643, cited by appellant, the claimant there was referred to two other companies, each of which was willing to employ him as *20a shipping clerk, the nature of the employment being similar to that in which he was formerly engaged. He was refused for the positions for the reason that he refused to work on Saturday. His employment with Albers Super Markets, Inc., was terminated by his refusal to continue to perform the work assigned to him. That case is distinguishable from the case at bar on the facts.

In the. instant case the fact that the claimant voluntarily quit work does not in and of itself deprive him óf benefits under the act. In such case the claimant is penalized by postponement of the time from which he may draw benefits, and the total amount which he may draw is reduced. The claimant still has a right to benefits if he shows a compliance with the provisions of Section 1345-6 a, General Code.

The referee found that the claimant made a *bona fide*effort to find employment in his usual trade or work, or employment for which he was reasonably fitted. He found none and was offered none. Judge Martin in a well considered and exhaustive opinion affirmed the decision of the referee. We do not find any error in the record on the matters assigned which are prejudicial to the appellant.

The judgment is affirmed.

*Judgment affirmed.*

Hornbeck, P. J., and Miller, J., concur.