Hoage v. Liberty Mut. Ins. Co.

• Decision Date: 17 June 1935
• Docket Number: No. 6411.,6411.
• Citation: Hoage v. Liberty Mut. Ins. Co., 78 F.2d 874, 64 App. DC 395 (D.C. Cir. 1935)
• Parties: HOAGE, Deputy Commissioner, et al. v. LIBERTY MUT. INS. CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 395, 78 F.2d 874 (1935)

HOAGE, DeputyCommissioner, et al. v.LIBERTY MUT. INS. CO.

No. 6411.

United States Court of Appeals for the District of Columbia.

Argued May 10, 1935.

Decided June 17, 1935.

George G. McLeish, of Washington, D. C., for appellants.

Arthur J. Phelan, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District in an equity proceeding under the District of Columbia Workmen's Compensation Law¹ overruling the motion of defendant(claimant), appellant Smith, to set aside a decree pro confesso against her and declaring the decree absolute, and also finally setting aside a compensation award to her by the Deputy Commissioner and enjoining her from attempting to enforce it.

On July 17, 1933, Henry Smith, a laborer employed by the Lake Stone Company, paving contractor, in the District, while engaged in patch work on the streets had been using a heavy sledge hammer for about an hour breaking concrete, when he collapsed and died from acute dilatation of the heart.His widow claimed compensation under the Workmen's Compensation Law, and the Deputy Commissioner, after a hearing on January 4, 1934, found that the deceased employee "sustained personal injury which arose out of and occurred in the course of his employment," and on January 24, 1934, awarded compensation to the widow, appellantBessie Smith.

Thereafter, on February 21, 1934, appellee insurance carrier by bill in equity in the court below against the Deputy Commissioner and Bessie Smith, as defendants, sought an injunction to restrain the enforcement of the award.The transcript of the hearing before the Deputy Commissioner was attached to and made a part of the bill.

On March 13, the defendants Hoage and Smith jointly filed a motion to dismissthe bill, and on May 2, after hearing, the motion was overruled and the defendant Hoage, by an injunction pendente lite, was restrained from enforcing the award.

Thereafter, on May 5, 1934, the plaintiff and the defendant Hoage, by written stipulation, agreed to extend to May 28 the time within which the defendant Hoage might file an answer or plead further.It is conceded that defendant Hoage elected to stand on his motion to dismiss.

On June 7 following, the court, on the bill, the defendants' motion to dismiss, and the transcript of the hearing before the Deputy Commissioner, found that the award was "not in accordance with law," and, it appearing that the defendantBessie Smith had "failed to file an answer or other pleading to said bill of complaint within the time prescribed" by law, entered a decree pro confesso against her "for want of answer or other defense."On the same day the court, declaring that defendant Hoage having elected to stand on his motion to dismiss, and the award being "not in accordance with law," entered a separate decree "finally and wholly" suspending and setting aside the award and permanently enjoining defendant Hoage from enforcing it.No appeal was taken by either defendant from the decrees of June 7.

On June 11defendant Smith filed a paper entitled "Answer of Bessie Smith to the bill."

On June 14defendant Smith filed a motion to set aside the decree pro confesso, and in support thereof her counsel filed an affidavit stating that he had been taken ill while preparing her answer, and that although associate counsel had assured him that he would seek a second extension of time for filing her answer he had failed to do so.

On November 10, 1934, the motion to set aside the decree pro confesso was, after hearing, overruled; sufficient cause not having been shown "to warrant the setting aside of the order or decree pro confesso."

On November 12, after reciting that on June 7, 1934, a decree pro confesso against defendant Smith had been entered for failure to answer the bill within the time prescribed by law, that her motion to set aside the decree pro confesso had theretofore been overruled, and that "more than thirty days having elapsed since the entry of said order or decree pro confesso, it is now deemed absolute,"the court decreed that the compensation award of defendant Hoage "is hereby finally and wholly suspended and set aside, and the said Bessie Smith is permanently enjoined from enforcing or attempting to enforce said award."

On November 28, 1934, it appearing that the defendant Smith, by her attorney, "who, on her behalf and on behalf of Robert J. Hoage, Deputy Commissioner, * * * notes an appeal * * * from the final decree in this cause, dated November 12, 1934,"the court entered an order allowing the appeal and fixing the undertaking on appeal.

Appellee by its motion in this court to strike the name of Robert J. Hoage, Deputy Commissioner, as a partyappellant, and by a further motion to dismiss the appeal of appellantBessie Smith, has raised procedural questions; but, since we agree with the lower court on the merits, we prefer to place our decision on that ground, and, therefore, express no opinion on the procedural questions presented.

At the hearing before the Deputy Commissioner the testimony regarding the cause of Smith's death was given by two physicians.The first, Dr. Murphy, deputy coroner for the District, testified on behalf of the claimant that at the District morgue he made a post mortem examination of Smith, who was about 30 years old, about five feet nine inches in height, and weighed 165 pounds."Both lungs were bound down.His heart was a beefy heart, markedly hypertrophied.The aorta was hemorrhagic throughout, with two areas perforated — almost perforated; that is, his ulcerations were thinned out in the center and it would not take much strain to puncture one.The heart was dilated.His kidneys showed evidences of advanced Bright's disease.His liver was cirrhotic; that is, hardened.The abdominal and chest organs were negative.The cause of his death was cardio-renal disease.By cardio-renal is meant an accumulation of disease in the heart and the kidneys that had been of long standing."The doctor was asked whether there was any indication in the post mortem of extreme strain or rupture or trauma of any kind, and gave the following answer: "There was no evidence of any trauma.There was no evidence of extreme strain other than he died from acute dilation of his heart.Acute dilation of the heart in a man with a heart in that condition in which his was — the slightest exertion may cause him to have acute dilation.He could have acute dilation in bed, in turning over.* * * He could have been tying his shoes and had acute dilation of the heart.He could have had strained work — anything that would be exertion could cause acute dilation."Finally, in answer to a hypothetical question by counsel for appellee, the doctor testified: "I would say that the death was probably coincidental with the employment.My reason for that answer is that, as I answer the previous question, the same condition could happen with the man in bed and other occasions as I stated — tying his shoes or anything that has an additional exertion — and it is not so important as to what the man was doing actually at that time as it is to the actual condition that was existing within the man; and he could have been sitting down and eating his lunch and the same thing could have happened as happened from what I learned of it, while he was working."

The other physician, Dr. Wood, witness for appellee...