Fidelity & Casualty Co. of New York v. Burris, 5512

• Decision Date: 20 June 1932
• Docket Number: 5513.,No. 5512,5512
• Citation: 61 App. DC 228,59 F.2d 1042
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. BURRIS. BURRIS v. HOAGE, Deputy Com'r.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 228, 59 F.2d 1042 (1932)

FIDELITY & CASUALTY CO. OF NEW YORK v. BURRIS.

BURRIS v. HOAGE, Deputy Com'r.

Nos. 5512, 5513.

Court of Appeals of the District of Columbia.

Argued May 31, 1932.

Decided June 20, 1932.

Gilbert L. Hall, of Washington, D. C., for appellant the Fidelity & Casualty Company of New York.

James J. Slattery, of Washington, D. C., for appellee and cross-appellant Emma Burris.

Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.

GRONER, Associate Justice.

This is a case arising under the Longshoremen's and Harbor Workers' Compensation Act (Act of March 4, 1927, 44 Stat. 1424, 33 USCA § 901 et seq., made applicable to the District of Columbia by Act of May 17, 1928, 45 Stat. 600 Tit. 19, §§ 11 and 12, D. C. Code 1929, 33 USCA § 901 note). The deputy commissioner denied compensation. The lower court, on a petition for injunction, thought the deputy commissioner's conclusion was wrong and entered an order setting aside the finding. The case is here on appeal and cross-appeal.

The question we have to decide is this: Does an employee who suffers a heat stroke while at work in the open sustain an injury which arises out of his employment within the meaning of section 902(2) and 902(11) of title 33, USCA? On behalf of the insurance carrier, it is contended that the cause of the injury was the abnormal heat to which the general public were subjected and not to any special hazard due to increased heat resulting from the occupation in which the employee was engaged at the time of the injury. The facts are these:

The employee was at work with other laborers in the open air on Harvard street, in Washington, and was engaged in taking up the old curbing and gutter and replacing it with new curbing and gutter. At the time of the sunstroke he was loading broken pieces of old curbing on a truck with a shovel. The day was very hot. The temperature at 8 o'clock in the morning was 79 degrees Fahrenheit and at 11 o'clock 92 degrees in the shade. Where the employee was at work there was little or no shade. About 11 o'clock employee started toward a water barrel and on his way collapsed. He was taken to a hospital and died there that evening from heat prostration or sunstroke.

His widow filed application for compensation with the commission, and, after hearing, the deputy commissioner rejected the application on the ground that it was not proven that the heat stroke from which decedent died arose out of and in the course of the employment. The basis of the finding was that the employee was not exposed to a hazard beyond that to which the general public was subjected. The lower court, on the other hand, held that, notwithstanding the public was subjected to the same atmospheric conditions, the death arose both out of and in the course of employment, because the general public was not subjected to the arduous character of work in which decedent was at the time engaged.

It is first insisted that both the lower court and ourselves are bound by the findings of fact of the deputy commissioner, but it is sufficient to say as to this that we have many times held that, upon a review of the record made before the deputy commissioner, our duty is to determine whether his order was or was not in accordance with law, and this depends upon whether the testimony taken before the deputy commissioner will sustain his finding. In this case the facts are all agreed, and the difference between the deputy commissioner and the court is to the conclusion to be reached from the admitted facts. As we view the matter, there is no evidence on which to sustain the deputy commissioner's finding. It is conceded that deceased was engaged in manual labor on an unshaded street on an intensely hot day. The official temperature reading having been taken from an elevation considerably above the street and in the shade, it is fair to assume that in the unprotected street the heat was abnormal and far greater than the official reading would indicate. His work required him to remain exposed to the sun's rays, and this, of course, was not true of the community generally. His employment therefore exposed him to a risk essentially arising out of the work.

The decision of the case turns, we think, upon the...