CF LYTLE CO. v. Whipple

• Decision Date: 07 June 1946
• Docket Number: No. 11217.,11217.
• Citation: 156 F.2d 155
• Parties: C. F. LYTLE CO. et al. v. WHIPPLE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F.2d 155 (1946)

C. F. LYTLE CO. et al. v. WHIPPLE et al.

No. 11217.

Circuit Court of Appeals, Ninth Circuit.

June 7, 1946.

Merritt, Summers, Bucey & Stafford, of Seattle, Wash., for appellants.

J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Guy Dovell, Asst. U. S. Atty., of Tacoma, Wash., for appellee C. M. Whipple.

Leo M. Koenigsberg, of Seattle, Wash., for appellee Nutt.

Before GARRECHT, DENMAN and BONE, Circuit Judges.

BONE, Circuit Judge.

This is a proceeding in which appellants seek to suspend and set aside a compensation order and award of compensation made under the provisions of Public Law 208 of the 77th Congress, 42 U.S.C.A. 1651 et seq. William Earnest Nutt was killed in Alaska while employed by appellants C. F. Lytle Co. and Green Construction Co., these companies being at the time engaged in a joint venture in the prosecution of a contract with the United States of America under the provisions of the statute noted. The insurance carrier was appellant, United States Fidelity and Guaranty Company.

A claim for compensation for his death was filed by Clark Nutt, the guardian of three minor children of Nutt. The claimant (guardian) and appellants stipulated in writing that the respondent Deputy Commissioner could and should consider as the record in this case (a) a transcript of the testimony taken at a coroner's inquest held at Fairbanks, Alaska, about three days after Nutt met his death, and (b) the depositions of four men connected in various capacities with the work on this project. Based on these records, the Deputy Commissioner made and filed the compensation order and award under consideration here.

Appellants question the sufficiency of the evidence in this record to sustain the compensation order. Their contention is that the death of Nutt did not arise out of and in the course of his employment, and further, that the record establishes (so as not to permit any conflicting inferences) that the death of Nutt was occasioned solely by his intoxication. These two contentions presented the decisive issues before the Deputy Commissioner and later considered by the lower court.

The record clearly sustains the finding of the Deputy Commissioner that the only means of transportation to and from job locations and the living quarters (barracks) of employees was in the employers' trucks; that Nutt was returning to the barracks from a point near job operations in a company truck when he was killed (about 11 p. m.).¹ See Liberty Mutual Ins. Co. v. Gray, 9 Cir., 137 F.2d 926.

The pertinent portion of the findings dealing with the conduct of Nutt at the time of his death set forth that while he was standing in the body of the truck one of the wheels struck either a hole in the road or an obstruction, catapulting the deceased over the side of the truck; that neither of the rear wheels struck him; that the death of the deceased was not occasioned solely by the intoxication of the deceased; and that his death arose out of and in the course of his employment.²

In assailing these last two declarations in the findings, appellants assert that they are clearly contrary to the facts as established by the testimony of Ray Johnston, who was apparently the only eyewitness of Nutt's actions at the moment he fell from the truck. They point to and emphasize a finding of the Deputy Commissioner "that deceased became intoxicated early in the evening" and "that deceased was in a happy stage of intoxication" (at the time of his death).

There was evidence in the record from which the Deputy Commissioner might have inferred and concluded that Nutt subjected himself to a peril or risk (in standing up and lifting his foot in a moving truck) not legitimately incidental to his employment or to the terms and conditions under which his work was required to be performed. It is equally true that the Deputy Commissioner might have concluded that Nutt's death was due solely to intoxication at the time which led or may have led him to stand up in the moving truck and put one foot over the side. But on the facts, as disclosed, the Deputy Commissioner held otherwise.

Witness Johnston was unable to state whether the fall from the truck was accidental or otherwise and he thought Nutt was "joking" at the time when he suggested that they "get out and walk". When asked if he (Johnston) thought Nutt knew what he was doing when he lifted a foot over the side of the truck body, Johnston stated that he thought that Nutt knew what he was doing. Asked by the coroner's jury if he thought that Nutt apparently thought that he would step out on the ground, Johnston replied: "I don't think he figured on letting his foot go down that far".

The only question of law involved here is whether there was evidence to support the findings of the Deputy Commissioner. See Norton v. Warner Co., 321 U. S. 565, 568, 64 S.Ct. 747, 88 L.Ed. 931. The able District Judge who reviewed the case frankly stated that he thought the Deputy Commissioner had made a mistake in arriving at the decision and...