Capital Transit Co. v. Hoage

• Citation: 84 F.2d 235,65 App. DC 382
• Decision Date: 27 April 1936
• Docket Number: No. 6547.,6547.
• Parties: CAPITAL TRANSIT CO. v. HOAGE (Parrott, Intervener).
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 382, 84 F.2d 235 (1936)

CAPITAL TRANSIT CO. v. HOAGE (Parrott, Intervener).

No. 6547.

United States Court of Appeals for the District of Columbia.

Decided April 27, 1936.

G. Thomas Dunlop, H. M. Keyser, S. Russell Bowen, H. W. Kelly, and R. Sidney Johnson, all of Washington, D. C., for appellant.

Leslie C. Garnett, Allen J. Krouse, and James F. Reilly, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

This case arises under the Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424; 33 U.S.C.A. §§ 901-950 made applicable to the District of Columbia 45 Stat. 600; D.C.Code 1929, tit. 19, c. 2, §§ 11, 12, 33 U.S.C.A. § 901, note).

The case involves a claim for compensation filed with the Deputy Commissioner of Compensation, for death benefits in behalf of the widow and minor children of John S. Parrott, deceased, who died as a result of electrocution while working in the repair shop of the Capital Transit Company, a self-insuring corporation.

The employer did not deny the death of the workman, or the relationship of the claimants with decedent, but alleged that the workman's death resulted from an accident which did not "arise out of and occur in the course of" the employment of the deceased while engaged in the service of the corporation. The employer therefore denied that the accident was compensable.

The Deputy Commissioner, after hearing the testimony, held that the claim was compensable and granted an award upon it.

A suit was then brought by the employer in the Supreme Court of the District of Columbia praying the court to set aside the award, upon the ground that it was not supported by any evidence. The court dismissed the bill and the present appeal followed.

It appears that at the time of the accident Parrott was employed by the defendant company as a workman engaged in the repair of various articles of electrical equipment such as are used in the construction of street cars, including among others control cylinders; that such cylinders while undergoing repairs would be entirely free from electrical contacts or currents and could be handled at the work bench without danger. However, after the completion of such repairs, the cylinders must be tested by passing through them an electrical current of very high and dangerous voltage, by means of which process any leaks remaining in the repair work can be detected.

Before Parrott went to work in the repair shop, Mr. Erb, the foreman of the department in which Parrott was working, spoke to him in part as follows:

"Now, Parrott, you have had quite a few accidents, and our department seems to run along very nicely without accidents, and I don't want you to handle anything alive, or make any tests, or so far as even turning on the lights."

On the day of the accident Parrott began working upon a certain control cylinder and finally completed its repairs in so far as could be done without putting it to an electrical test. For the purpose of applying such a test, Parrott took the cylinder to an electrical testing machine and there subjected it to a voltage of 1,500 volts. When applying this test, Parrott apparently made no effort to protect himself from contact with the electrical current, although the means for such protection, such as insulated gloves, were at hand and could easily have been made use of by him. As a result of this action by Parrott, the current was passed through his body and he was instantly electrocuted.

The electrical testing machine was on the same floor with Parrott's work bench and about 100 feet distant from it. It seems that at the time of the accident there was but one other workman at work in the same part of the shop with Parrott. The name of this workman was Marsden. Marsden had frequently used the same electrical testing machine which Parrott used when testing the repair work. When Parrott left his work bench with the cylinder to go to the testing machine and before putting the completed cylinder in the machine, he passed Marsden and told him he was about to do so. Marsden answered him and said: "All right, put 1,500 on it."

It was claimed by the company that when Parrott undertook to apply the electrical test to the article, he did so in defiance of the orders given to him by Mr. Erb, and consequently that his action in applying the machine was outside of the scope of his employment at that time, and therefore that his accidental death did not arise out of and occur in the course of his employment. The company therefore denied that compensation should be awarded under the statute.

The Deputy Commissioner after hearing the testimony in the case made the following award:

"It is found that the employee was engaged in repairing control cylinders by removing worn plates and placing new plates on the control cylinders in place of the worn ones; that the plates were at the beginning of certain circuits on these cylinders, each plate carrying through a certain circuit electrical current, each series of current being insulated from the cylinder itself to avoid short circuiting and also insulated so that the current could not come in contact with an adjacent plate; that the final operation in the repair of these cylinders is the electrical testing to determine if the circuits are complete and properly insulated before using them as a part of the electrical equipment.

"The testimony of the general manager indicates that instructions not to touch live connections or apparatus had been given to said employee, but that no specific instructions about any individual machine had been given; that the said employee had been working on a bench with a co-employee by the name of Marsden, who had been doing all of the testing of these cylinders when completed; that after completing the repair work on one of the cylinders the said employee proceeded to the machine and the next instant he was found electrocuted as above described.

"It is found, therefore, that the injury and death arose in the course of the employee's employment and out of the employment and that his act in testing the said cylinder did not constitute a deviation from his duties and that by so doing he did not take himself out of the scope of his employment....