Liberty Mut. Ins. Co. v. Cardillo

Decision Date08 April 1946
Docket NumberNo. 9086.,9086.
Citation154 F.2d 529
PartiesLIBERTY MUT. INS. CO. et al. v. CARDILLO, Deputy Com'r, U. S. Employees' Compensation Commission for the District of Columbia et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Arthur J. Phelan, of Washington, D. C., with whom Mr. Edward B. Williams, of Washington, D. C., was on the brief, for appellants.

Mr. Ward E. Boote, Chief Counsel, U. S. Employees' Compensation Commission, of Washington, D. C., with whom Messrs. Edward M. Curran, U. S. Attorney, and Daniel B. Maher, Assistant U. S. Attorney, both of Washington, D. C., were on the brief, for appellee Frank A. Cardillo.

Mr. Homer S. Carpenter, of Washington, D. C., appeared on the brief as attorney for appellee Virginia C. Ticer.

Before GRONER, Chief Justice, and CLARK and WILBUR K. MILLER, Associate Justices.

WILBUR K. MILLER, Associate Justice.

This appeal brings before us for review a judgment of the District Court of the United States for the District of Columbia which affirmed a compensation award under the Longshoremen's Act.1

The evidence clearly showed that Walter H. Ticer had been employed for some ten years before his death on December 17, 1943, by E. C. Ernst, Inc., a corporation engaged in the electrical construction business. The Ernst firm was incorporated in, had its principal office in, and did much of its construction work in, the District of Columbia. It also had substantial contracts elsewhere, including one at the U. S. Marine Base at Quantico, Virginia, which had been in progress for several years. Ticer, who lived in the District of Columbia, was assigned with other employees to the Quantico job in 1940. He did all his work and received his pay in Quantico.

It was the custom of those employees who lived in or near Washington to drive their personally owned automobiles to a central starting point each morning. There four or five would get in one automobile and proceed to Quantico, leaving the other cars until they returned that evening, thus economizing on gasoline and oil and minimizing depreciation on the automobiles. Any employee who did not contribute a car to the "pool" paid $1 for the round trip to him whose car was being driven to Quantico.

On December 13, 1943, it was Ticer's turn to drive his car the entire distance. He was accompanied by four co-workers, two members of the car pool and two who paid him $1 each for the day's transportation. As Ticer drove his car homeward that evening and was approaching Fort Belvoir, Virginia, a truck passing in the opposite direction somehow picked up a stone from the surface of the highway. The stone was hurled through the windshield and struck Ticer on the head. From the injury so sustained, he died three days later.

Compensation for the death having been awarded to Ticer's widow by the deputy commissioner, E. C. Ernst, Inc., and Liberty Mutual Insurance Company, its compensation insurance carrier, sued to vacate the award. The District Court granted a motion to dismiss, and the employer and its insurance carrier appeal.

The position of the appellants is (1) that the conclusion of the deputy commissioner that the injury arose out of and in the course of the employment was contrary to the law and to the evidence, and (2) that the deputy commissioner did not have jurisdiction to make an award.

The general rule is that injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of employment. Ordinarily, the hazards they encounter during those journeys are not incident to the employer's business.2 This is not an inflexible rule, however, and exceptions to it may arise either through the employer's agreement to that effect, or from the circumstances of the case from which appropriate authority implies an agreement on the part of the employer to compensate for injuries received in going to and from work.

The general rule stated in the Voehl case was recognized by this court in Ward v. Cardillo,3 and a statement of four exceptions thereto was approved. Those exceptions are:

(1) Where the employer requires the employee to travel on the highways;

(2) Where the employer contracts to and does furnish transportation to and from work;

(3) Where the employee is subject to emergency calls, as in the case of firemen;

(4) Where the employee uses the highway to do something incidental to his employment, with the knowledge and approval of the employer.

The appellees attempt to justify the award in this case by saying that it falls within the second exception, in that E. C. Ernst, Inc., contracted to and did furnish transportation to and from work.

As a member of the Institute of Electrical Contractors of the District of Columbia, E. C. Ernst, Inc., was bound by the terms of a contract between that institute and a local union of electrical workers, of which Ticer was a member. The pertinent paragraphs of the contract between the institute and the union are shown in the margin.4 As a matter of practice, however, Rule 15(b) was not followed by the parties with respect to the work at Quantico. By an oral agreement subsequent to the formal written contract there was substituted for the obligation of the employer to transport employees engaged in work outside the District of Columbia an arrangement by which Ernst paid each employee the flat sum of $2.00 per day as transportation expense. This applied whether the employee lived in the District of Columbia, in Quantico, or at an intermediate point. E. C. Ernst, Inc., did not furnish vehicles for transportation, did not contract with others to transport its employees, did not furnish gasoline or oil, and did not specify the means or route by which employees should reach the work site at Quantico. Each employee was entirely free to select the method by which he would reach Quantico each day and by which he...

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5 cases
  • Cardillo v. Liberty Mut Ins Co
    • United States
    • U.S. Supreme Court
    • March 10, 1947
    ...was in all respects in accordance with law. On appeal, the Court of Appeals for the District of Columbia reversed, one justice dissenting. 154 F.2d 529. Without passing upon the jurisdictional issue, the court held that Ticer's injury had not arisen out of and in the course of his employmen......
  • Martin v. George Hyman Construction Co.
    • United States
    • D.C. Court of Appeals
    • November 21, 1978
    ...was not available against Hyman. D.C.Code 1973, § 36-501, incorporating 33 U.S.C. c. 18 (1970); see Liberty Mut. Ins. Co. v. Cardillo, 81 U.S.App.D.C. 72, 74, 154 F.2d 529, 531 (1946), rev'd on other grounds, 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947). Such a claim would not be barred......
  • Blankinship Logging Co. v. Brown
    • United States
    • Arkansas Supreme Court
    • February 9, 1948
    ... ...          Appellant ... relies on the case of Liberty Mutual Ins. Co. v ... Cardillo, 154 F.2d 529. That case arose under the ... Court of the United States in Cardillo v ... Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, ... the circuit court of appeals ... ...
  • Hurley v. Lowe, 9645.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 15, 1948
    ...with law.'" Anniston Mfg. Co. v. Davis, 1937, 301 U.S. 337, 352, 57 S.Ct. 816, 823, 81 L.Ed. 1143. 6 Liberty Mut. Ins. Co. v. Cardillo, 1946, 81 U.S.App.D.C. 72, 154 F.2d 529. 7 Cardillo v. Liberty Mutual Co., supra note 3, at pages 478, 479 of 330 U.S., at page 807 of 67 S.Ct. 8 Id., at pa......
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