Chicago Grain Trimmers Association v. Enos

• Decision Date: 06 October 1966
• Docket Number: No. 15342.,15342.
• Parties: CHICAGO GRAIN TRIMMERS ASSOCIATION, Inc., and New Amsterdam Casualty Company, Plaintiffs-Appellants, v. R. C. ENOS, Deputy Commissioner, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

369 F.2d 344 (1966)

CHICAGO GRAIN TRIMMERS ASSOCIATION, Inc., and New Amsterdam Casualty Company, Plaintiffs-Appellants, v. R. C. ENOS, Deputy Commissioner, Defendant-Appellee.

No. 15342.

United States Court of Appeals Seventh Circuit.

July 13, 1966.

Rehearing Denied October 6, 1966.

Mark A. Braun, Klohr, Braun & Lynch, Chicago, Ill., for plaintiffs-appellants.

Morton Hollander, Martin Jacobs, Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Edward V. Hanrahan, U. S. Atty., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before DUFFY, KNOCH and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

A determinative question presented in this appeal is whether the doctrine of res judicata should be applied to a claim for compensation death benefits filed under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, because of an administrative denial of a prior claim filed by the same dependents seeking similar relief.

This action was instituted under section 921 of the act to set aside an order of the deputy commissioner, Department of Labor, dated January 27, 1964, granting compensation death benefits to the widow and minor children of John J. Banks, deceased. The plaintiffs are the Chicago Grain Trimmers Association, the employer of Banks, and the New Amsterdam Casualty Company, its compensation insurance carrier. After considering cross-motions for summary judgment, the district court entered judgment affirming the decision of the deputy commissioner. The court held that the deputy commissioner's findings were supported by substantial evidence in the administrative record and that his decision and award were in accordance with law.

Three issues have been presented in this appeal: (1) whether substantial evidence supports the finding of the deputy commissioner that an injury to the deceased employee during the course of his employment resulted in his death; (2) whether the entry of a remittitur by the administratrix of the deceased employee's estate in a third-party wrongful death action without the employer's consent constitutes a "compromise" within the meaning of the act, barring a claim for death benefits; and (3) whether a prior decision of the deputy commissioner that an injury allegedly sustained by the employee in the course of his employment did not result in his death bars a subsequent claim that a different injury sustained by the employee while at work resulted in his fatality. Because we are convinced that the plaintiffs should prevail on the third issue, our discussion will be confined to that point.

At the time of his death on February 12, 1961, John J. Banks was an employee of the Chicago Grain Trimmers Association. He had worked as a grain trimmer since 1934, loading and unloading grain-carrying barges and vessels. In the late afternoon of January 30, 1961, after returning from work, Banks was standing at the head of the basement stairs in his home. Suddenly he pitched forward, falling eleven steps. His head struck the concrete floor, causing injuries that resulted in death thirteen days later.

The first claim for compensation benefits, filed on February 20, 1961 by the widow, Agnes Banks, for herself and her minor children, alleged that Banks sustained an accidental injury at work on January 26, 1961 which caused his fall at home on January 30, thereby incurring other injuries which resulted in death. At the hearing on this claim there was testimony that the deceased was struck by a cable on January 26 while working on a barge. Other witnesses, including several coworkers, testified that they did not see Banks suffer any accidental injury on that date and that during the subsequent three days he did not complain of illness. The deputy commissioner found that Banks died as a result of injuries incurred by the fall in his home, but that the evidence failed to establish that the fall was the consequence of an injury arising in the course of his employment. The claim for compensation was rejected.

On August 22, 1961, a second claim was filed by the widow in behalf of herself and her minor children alleging that Banks sustained an accidental injury on January 30, 1961 while working on a barge, which caused fatal injuries in his home on the same date. Shortly thereafter, the widow, as administratrix of her husband's estate, brought a wrongful death action in the federal district court against the Norris Grain Company.¹ She claimed that Norris was responsible for the breaking of a rope (which was stretched from a barge to a tower adjacent to one of its grain elevators) on January 30, 1961 which struck her husband on the head, eventually resulting in his death. The jury returned a verdict in her favor.²

Over the objection of the Grain Trimmers Association and its insurer, the deputy commissioner thereafter proceeded to entertain the second claim for compensation. Although jurisdiction to hear this application was challenged because of the prior finding that death had not resulted from employment, the deputy commissioner concluded that a hearing was justified because the claim concerned a different date of injury than that alleged previously. At this second hearing both parties presented testimony relating to the alleged occurrence of an accidental injury on January 30, 1961.³ The claimants presented evidence that the rope, stretched from the barge to the tower broke and a "whole pile" fell on Banks' head. Witnesses for the employer denied knowledge of the rope breaking or of any complaint made by the deceased about the alleged incident. At the conclusion of the hearing the deputy commissioner found that the deceased suffered an injury while at work on January 30, 1961 producing an acute subdural hematoma, which caused him to fall down a flight of steps in his home two hours later. The deputy commissioner proceeded to make the compensation award challenged by the plaintiffs in the instant proceeding.

Turning to the question before us, both claims filed by the widow for herself and her minor children sought benefits under the compensation act for the death of the husband as the result of injuries sustained in his home. The only difference in the claims is that initially an accidental injury during employment on January 26 was asserted as being the cause of Banks' fall, whereas in the subsequent claim a predisposing accidental injury was alleged to have occurred on January 30, both in 1961. In the first hearing the evidence was directed to an alleged incident on January 26; in the second it was confined to the alleged incident on January 30. Although the claims presented different factual issues, these particular issues were intermediary to a determination of whether there was a causal relationship between the deceased's employment and the fatal fall in his home. The fall and the resulting injury and death were the ultimate occurrences upon which both asserted claims depended. This identity of ultimate issues constituted a single claim for compensation rather than two separate ones.

An analogous situation was present in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927). There a seaman employed aboard a vessel was injured by the fall of a strong-back used to support a portion of a hatch. A libel was filed in admiralty alleging that the injury was caused by negligence in failing to provide a safe place to work and to use reasonable care and by the unseaworthiness and the insufficiency of gear and tackle, and, in the alternative, if no negligence was established, for maintenance and cure. The federal district court found that the accident was not due to the negligence alleged, that is, the faulty design and construction of certain gear, but to the grossly negligent manner in which dunnage was removed from the hold. The court denied full indemnity by way of damages but awarded the cost of maintenance and cure. In a subsequent suit, the plaintiff sought recovery under the Jones Act alleging negligence of the ship's officers and employees in handling seaworthy gear. The plaintiff was awarded damages in the district court. The circuit court of appeals affirmed, but the Supreme Court reversed. In the course of its opinion, the Court first defined res judicata as follows:

The effect of a judgment or decree as res judicata depends upon whether the second action or suit is upon the same or a different cause of action. If upon the same cause of action, the judgment or decree upon the merits in the first case is an absolute bar to the subsequent action or suit between the same parties or those in privity with them, not only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented. 274 U.S. at 319, 47 S.Ct. at 602.

Then, after referring to the opinion of the lower court that there was no identity of the causes of action because the grounds of negligence pleaded were "distinct and different in character," the Court declared:

Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex.

A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The

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