Evening Star Newspaper Co. v. Kemp

Decision Date30 April 1976
Docket NumberNo. 74-2132,74-2132
Citation175 U.S.App.D.C. 89,533 F.2d 1224
PartiesEVENING STAR NEWSPAPER COMPANY, Petitioner, v. Phyllis KEMP and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

John E. Rogers, Washington, D. C., with whom Richard W. Turner, Washington, D. C., was on the brief for petitioner.

Ronald E. Meisburg, Atty., U. S. Dept. of Labor, Washington, D. C., with whom George M. Lilly, Atty., U. S. Dept. of Labor, Washington, D. C., was on the brief for respondent Director, Office of Workers' Compensation Programs, U. S. Dept. of Labor.

Joseph H. Koonz, Jr., Washington, D. C., for respondent Phyllis Kemp.

Before DANAHER, Senior Circuit Judge, LEVENTHAL, Circuit Judge and VAN PELT, * United States Senior District Judge for the District of Nebraska.

Opinion for the Court filed by Senior District Judge VAN PELT.

Dissenting opinion filed by Senior Circuit Judge DANAHER.

VAN PELT, Senior District Judge.

The petitioner, Evening Star Newspaper Company (Evening Star), seeks reversal of an order awarding to the widow of an employee, compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. as made applicable to the District of Columbia by the District of Columbia Workmen's Compensation Act, D.C.Code 1973, § 36-501 et seq. Following an evidentiary hearing the Administrative Law Judge found for respondent widow. This ruling was affirmed by the Department of Labor's Benefits Review Board. We affirm.

The basic issue presented in this appeal is whether the decision of the Administrative Law Judge and the Benefits Review Board that the injury arose out of and in the course of the decedent's employment is supported by substantial evidence and is not inconsistent with the applicable law.

The decedent, Nathan Kemp, was employed by the Evening Star as a truck driver delivering newspapers. He also owned a taxicab which he operated part-time.

On August 10, 1971, while Mr. Kemp was on pay status with the Evening Star, he was killed by a gunshot wound under the following circumstances:

Kemp had returned from his first delivery run at about 3:30 p. m. on that day. He was not due to make another run until 4:25 p. m. Thus he had approximately one hour in which he could do as he pleased. However, he was still on pay status ("on the clock"). From employee Ward he learned that his taxicab, which was parked in a lot one-half block from the Star building, had been hit. Ward suggested to Kemp getting Andrews, who was another "on the clock" driver and who did body work. All three then walked over to the lot to check out the accident.

Andrews looked at the dent in the taxicab and stated that if he had a rubber mallet he could fix it enough for Kemp to get through inspection. Kemp got the gun out of the car and Ward and Kemp began playing with the gun. The three men then left in the taxicab to go to the New Star Garage about three blocks away to get the rubber mallet. It is not clear whether decedent placed the handgun back in the trunk or placed it under the seat of the taxicab.

While at the garage, Andrews began working on the car and the other two men again got the gun out. It is unclear whether Ward or the decedent got the gun out of the car the second time. In the course of handling the gun, it went off while Ward was holding it. Ward's testimony was: "And like I had the gun in my hand, and he said, Oh, man, come on, let's stop this playing. And he made a motion towards me and hit my hand and the gun went off." Mr. Kemp was killed by the shot.

At the hearing before the Administrative Law Judge there was testimony that the decedent carried the gun because he was afraid of being robbed in his taxicab and because he was afraid of things that might happen while he was driving the Evening Star's delivery truck. He had carried the gun on at least one delivery trip and his wife a couple of times noticed that he was carrying the gun when she went to the Evening Star building to pick up his pay check. There was also testimony that other Evening Star drivers had been called names or had been threatened on their delivery runs. However, none carried guns on their trucks, although some carried them in their cars.

The drivers were required to deliver papers into some rural areas and were sometimes required to carry money for the company. The trucks they drove were very similar to the trucks regularly used to carry the Evening Star's money.

Evidence was also presented at the hearing concerning the "free time" the drivers had between their runs. During this time they remained "on the clock" for pay computation but were allowed to leave and do whatever they wanted. Frequently the drivers were required to go to the garage, the scene of the accident, for various employer-related reasons. On occasion the drivers had gone to the garage to work on their private automobiles, to consult with the Evening Star's mechanics about such automobiles, and to borrow tools. The Evening Star's supervisory personnel were aware of these activities and permitted them to occur.

Based on these facts, the Administrative Law Judge awarded compensation and the Benefits Review Board agreed with such order.

We must consider two basic rules in deciding this appeal. The first concerns the scope of judicial review. It is well-settled that if the Administrative Law Judge's decision is supported by the evidence as a whole and is not inconsistent with the law, it should be upheld. Cardillo v. Liberty Mutual Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947).

"The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner (Administrative Law Judge) are to be accepted unless they are irrational or 'unsupported by substantial evidence on the record . . . as a whole.' O'Leary v. Brown-Pacific-Maxon, Inc., supra, 340 U.S. (504) at 508 (71 S.Ct. 470 at 472, 95 L.Ed. 483)." O'Keefe v. Smith, Hinchman & Grylls Assoc. Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895, 898 (1965).

Accord, Wheatley v. Adler, 132 U.S.App.D.C. 177, 407 F.2d 307 (1968); Potenza v United Terminals, Inc., 524 F.2d 1136 (2nd Cir. 1975); Nardella v. Campbell Machine, Inc., 525 F.2d 46 (9th Cir. 1975).

The second rule is the strong legislative 1 and judicial policy favoring awards in workmen's compensation cases.

"Our review must also take account of the settled rule that the Act is to be construed with a view to its beneficent purposes. Doubts, including the factual, are to be resolved in favor of the employee or his dependent family." Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821 (1955).

Accord, O'Keefe v. Smith, Hinchman & Grylls Assoc. Inc., supra ; Wheatley v. Adler, supra ; Strachan Shipping Co. v. Shea, 406 F.2d 521 (5th Cir. 1969).

We conclude that the Administrative Law Judge's finding that the decedent's death resulted from injuries sustained in the course of and arising out of his employment is supported by substantial evidence, and that, under the rules just mentioned and the cited portion of the Act, we should affirm the Benefits Review Board.

The decedent was injured during an enforced lull, which was a condition of his employment. His presence at the Star Garage was not against company policy. On the contrary, it was acquiesced in by the employer.

Viewing the facts in a light most favorable to decedent and his widow, it appears that he was killed by a fellow employee who was handling the decedent's personal handgun. At the time decedent was on pay status with the Evening Star and was on the sidewalk adjacent to the employer's premises. The handgun was carried for the decedent's personal protection as well as for protection of the employer's property. The handling of the gun was instigated by the fellow employee, and the accident occurred when the decedent attempted to stop the activity. The evidence does not show that the two were engaged in reckless, irresponsible "horseplay." 2

Although it is true that an employer should not be held liable for an accident that results from a "new and added peril to which the employee by his own conduct has needlessly exposed himself", Monahan v. Hoage, 67 U.S.App.D.C. 174, 176, 90 F.2d 419, 421 (1937); Penn. Stevedoring Corp. v. Cardillo, 72 F.Supp. 991, 993 (S.D.N.Y.1947), aff'd, 165 F.2d 789 (2d Cir. 1948), the enforced lull in this case sheds a different light on the facts of the accident. The enforced lull was a part of that employment. If the employees engaged in an activity that hindsight proves was lacking in reasoned thought, so long as it was not illegal, the employer cannot be heard to complain. The employees cannot be expected to remain idle during this time. It is to be expected that they will engage in activities that will relieve their boredom. See Hartford Accident & Indemnity Co. v. Cardillo, supra. Unless the activity is so totally unreasonable that it severs the employee's connection with the employer, any accident resulting therefrom should be considered as sustained in the course of and arising out of the employment.

The ultimate question is whether the fact that a gun was involved in the accident in this case works such a severance. Had the injury been sustained in, say, a brawl wherein some ready-to-hand weapon was used, like a pipe, the employer would obviously be liable under the holding of Hartford Accident. The result is not changed because decedent's death was due to the discharge of his gun, provided there was an employment nexus for the gun, the injury occurred on the employer's premises during work-time, and decedent was not the instigator of the fatal gun handling. As to the employment nexus, the findings of the Administrative Law Judge (ALJ) establish that the availability of a gun was not unrelated to the...

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