Baltimore & OR Co. v. Clark

• Decision Date: 13 June 1932
• Docket Number: No. 3286.,3286.
• Citation: Baltimore & OR Co. v. Clark, 59 F.2d 595 (4th Cir. 1932)
• Parties: BALTIMORE & O. R. CO. v. CLARK, Deputy Com'r, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

59 F.2d 595 (1932)

BALTIMORE & O. R. CO. v. CLARK, Deputy Com'r, et al.

No. 3286.

Circuit Court of Appeals, Fourth Circuit.

June 13, 1932.

George W. P. Whip, of Baltimore, Md. (Allan S. Bowie, of Baltimore, Md., on the brief), for appellant.

Henry L. Wortche, of Baltimore, Md. (George Forbes, Henry Glick, Simon E. Sobeloff, U. S. Atty., and Charles G. Page, Asst. U. S. Atty., all of Baltimore, Md., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and WAY, District Judge.

PARKER, Circuit Judge.

This suit was brought in the court below to enjoin the enforcement of an award made by a deputy commissioner of the United States Employees' Compensation Commission in favor of the two dependent children of one Julius Ellis, a coal trimmer employed by the Baltimore & Ohio Railroad Company. The award was made under the Longshoremen's and Harbor Workers' Compensation Act (Act of March 4, 1927, c. 509, 44 Stat. 1424, 33 USCA §§ 901-950) and rested upon the finding by the deputy commissioner that Ellis died as the result of heat stroke sustained while in the service of the railroad company upon the navigable waters of the United States. The judge below affirmed the award of the deputy commissioner, and the railroad company has appealed. Three questions are presented for our consideration: (1) Whether the deputy commissioner had jurisdiction to make the award, the contention of appellant being that the injury which resulted in the death of Ellis occurred upon the land and not upon the navigable waters of the United States; (2) whether death resulting from heat prostration not due to unusual and extraordinary conditions in the employment is an accidental death compensable under the statute; and (3) whether the amount of the award was properly fixed under the applicable provision of the act.

On the question of jurisdiction, the facts are that Ellis was employed as a coal trimmer by the railroad company. On August 25, 1931, he was put to work trimming coal on vessels lying at the pier at Baltimore on navigable waters of the United States. He was required to work in the bunkers of the vessels, in close proximity to their engine rooms, in a dusty atmosphere and at a temperature considerably above that of the air outside. While so engaged he developed symptoms of heat prostration, which continued and became very violent during the following night. The next day he attempted to work in a coal pit on land, but became so ill that he was unable to proceed and was taken to the office of a physician and thence to a hospital, where on the following day he died as a result of heat prostration. The deputy commissioner found that he suffered from heat prostration "caused by and arising out of the circumstances of his employment" on August 25th, and that the attack of the 26th "culminating in prostration after comparatively moderate exertion for a short time in the open air" was in direct causal connection with the injury incurred on the 25th.

The contention of the company here, as it was in the court below, is that the injury which caused the death of Ellis occurred on land on the 26th and not while he was working in the vessels on the 25th. A careful study of the record convinces us, however, that the judge below and the deputy commissioner were correct in holding that the injury resulting in death was sustained on the 25th. As was well said by the judge: "We have no hesitation in concluding that the deputy commissioner was correct, on the evidence as a whole, in holding that decedent's death on August 27th was the direct result of what happened on the first day while decedent was working in the bunkers of the vessels, and that the more complete prostration on the following day, which culminated in his death, was merely a recurrent attack of the original prostration; in other words, that there was a direct causal connection between the illness of the first day and the death. The endeavor on the part of the company's physicians to belittle the first illness and to treat the two illnesses as wholly distinct is, we think, entirely unconvincing, and unsupported by any rational or natural inference from the proved facts of the case. The comparatively short period of time that elapsed between the first and second illness, together with the very small amount of moderate exertion which decedent made, all in the open air, on the second day before he completely collapsed, tend to negative the reasonableness of these physicians' diagnosis."

As the place of the injury resulting in death goes to the question of jurisdiction, we are not bound by the findings of the deputy commissioner with regard thereto. Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598. Where, however, the judge below, after considering the evidence, finds the facts in accordance with the findings of the deputy commissioner, we will not reverse such findings unless clearly wrong. Here we are satisfied that upon the evidence they were clearly right.

On the second point, the contention of the company is that heat prostration is necessarily due in part to conditions inherent in the individual affected and is not to be attributed to the conditions under which he is working, in the absence of evidence that it resulted from some unusual or extraordinary condition in his employment not naturally and ordinarily incident thereto. In support of this position the company relies upon the Maryland cases of Slacum v. Jolley, 153 Md. 351, 138 A. 244, 245, and Miskowiak v. Bethlehem Steel Co., 156 Md. 690, 145 A. 199. The contention is that because the injury occurred upon navigable waters within the state of Maryland, this court is bound to follow the Maryland decisions, and that even if not bound by them, the court should follow them as a correct statement of the rule of law applicable.

We think it clear that we are not bound by the Maryland decisions. In deciding whether or not an injury is compensable under the Longshoremen's and Harbor Workers' Compensation Act, we are interpreting a federal statute (44 Stat. 1424, 33 USCA § 902), which has a uniform operation throughout the United States and which "neither is nor can be deflected therefrom by local statutes or local views of common law rules." Lindgren v. U. S., 281 U. S. 38, 44, 50 S. Ct. 207, 210, 74 L. Ed. 686; Panama R. Co. v. Johnson, 264 U. S. 375, 392, 44 S. Ct. 391, 68 L. Ed. 748; Second Employers' Liability Cases, 223 U. S. 1, 51, 55, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; U. S. v. Lindgren (C. C. A. 4th) 28 F.(2d) 725, 726.

And we think it equally clear that heat prostration resulting from the conditions of employment, as was found by the deputy commissioner in this case, is compensable under the statute without reference to whether there was any unusual or extraordinary condition in the employment not naturally and ordinarily incident thereto. The statute provides that "the term `injury' means accidental injury or death arising out of and in the course of employment." 33 USCA § 902. It says nothing about unusual or extraordinary conditions; and there is no reasonable basis for reading such words into the statute. A workman who sustains heat prostration as the result of the working conditions under which he labors, has sustained an injury "arising out of and in the course of his employment"; and the fact that other workmen may not have been affected or that he may have been rendered more readily susceptible to injury than they were by reason of his physical condition cannot affect the matter. As was said by the Court of Appeals of New York in Hughes v. Trustees of St. Patrick's Cathedral, 245 N. Y. 201, 156 N. E. 665: "Heat prostration is an accidental injury arising out of and during the course of the employment, if the nature of the employment exposes the workman to risk of such injury. Matter of Madura v. City of New York, 238 N. Y. 214, 144 N. E. 505. Although the risk may be common to all who are exposed to the sun's rays on a hot day, the question is whether the employment exposes the employee to the risk. Matter of Katz v. A. Kadans & Co., 232 N. Y. 420, 134 N. E. 330, 23 A. L. R. 401."

In the leading case of Ismay, Imrie & Co. v. Williamson, A. C. (1908) 437, 1 B. W. C. C. 232, in which it appeared that a trimmer employed to rake ashes from the furnace on a steamship had suffered a heat stroke and the contention was made that the stroke was due to his emaciated condition and low vitality, Lord Loreburn laid down the rule which we think properly applicable in such cases. Said he:

"My Lords, I agree with the judgment of the Court of Appeal.

"The county court judge has found that this man died from an accident. There does not seem to me reason for dissenting from that view.

"To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who has died from a heat-stroke was by physical debility more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not.

"In my view this man died from an accident. What killed him was a heat-stroke coming suddenly and unexpectedly upon him while at work. * * *"

The question as to whether heat stroke is to be deemed an accidental injury within the meaning of workmen's compensation acts has been frequently before the courts. In some cases distinction is made between injuries...