Maryland Casualty Co. v. Cardillo

• Decision Date: 19 September 1938
• Docket Number: No. 7084.,7084.
• Citation: Maryland Casualty Co. v. Cardillo, 99 F.2d 432, 69 App.D.C. 199 (D.C. Cir. 1938)
• Parties: MARYLAND CASUALTY CO. v. CARDILLO, Deputy Com'r, United States Employees Compensation Commission.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 199, 99 F.2d 432 (1938)

MARYLAND CASUALTY CO. v.CARDILLO, DeputyCom'r, United States Employees Compensation Commission.

No. 7084.

United States Court of Appeals for the District of Columbia.

Decided September 19, 1938.

Edwin A. Swingle and Earnest A. Swingle, both of Washington, D. C., for appellant.

Ernest F. Coleman, David A. Pine, U. S. Atty., Allen J. Krouse, Asst. U. S. Atty., Z. Lewis Dalby, Charles T. Branham, and William A. Powell, all of Washington, D. C., for appellees.

Before MILLER, EDGERTON, and VINSON, Associate Justices.

EDGERTON, Associate Justice.

This case involves the validity of an award of compensation¹ to the widow and minor child of a deceased employee.Jennings, an assistant cook in a restaurant, was killed with a meat cleaver by Steadman, a bus-boy.No one else was present.Steadman ran away and hid, but was taken and tried for murder.He pleaded self-defense and was acquitted.On June 30, 1936, the deputy commissioner made an order denying compensation, on the statutory ground that the death of Jennings resulted from his willful intent to injure another.On July 28, 1936, he vacated this order.On October 29, 1936, he held another hearing, at which Steadman testified.On March 3, 1937, he filed an order awarding compensation, on the basis of findings that Jennings's death resulted, not from his intent to injure another, but from an attack upon him by Steadman, "a fellow worker of lower rank, in the course of an altercation with respect to Steadman's manner of doing his work," and that the death arose out and in the course of Jennings's employment.Steadman's story was that Jennings criticized his manner of peeling potatoes, that Steadman resented it, that Jennings attacked Steadman, and that a fight followed in which Steadman killed Jennings.The deputy commissioner did not believe that Jennings attacked Steadman.The insurance carrier, pursuant to § 921(b) of the compensation act, filed a bill in the District Court to set aside the award, substantially on the grounds that (1) the deputy commissioner had no authority to issue his vacating order and his subsequent award of compensation, and (2) the findings on which the award rests are arbitrary and capricious.Defendants' motions to dismissplaintiff's bill were granted, and plaintiff appealed.

Before a compensation order has become "final," under § 921 of the act, by the lapse of 30 days, it has been assumed that the deputy commissioner may vacate it.Globe Stevedoring Company, Inc., v. Peters, D.C., 57 F.2d 256, 259;Crescent Wharf & Warehouse Company v. Pillsbury, 9 Cir., 93 F.2d 761.The vacating order was filed less than 30 days after the original order of June 30.It asserted that the original order was based on hearsay, with no "residuum of competent legal evidence."We need not examine this comment.The deputy commissioner's authority to vacate the order did not depend on his reasons for doing so.Moreover, appellant did not seek judicial review of the vacating order within 30 days, as § 921 of the act would seem to require.

But wholly irrespective of the vacating order, the deputy commissioner had authority, under § 922 of the act, to hold the new hearing of October 29, 1936, and issue the compensation order of March 3, 1937.Section 922 provides:

"Upon his own initiative * * * because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this chapter, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation. * * *"

As the deputy commissioner's later findings of fact contradicted his earlier ones, evidently he thought that a "mistake in a determination of fact" had been made.An order rejecting a claim for compensation is a compensation order;² and the deputy commissioner may review a compensation case "whether or not a compensation order has been issued."He may therefore review a rejection of compensation; as no compensation had been paid, the time limit of "one year after the date of the last payment of compensation" had not even commenced to run; and "that this review was called a rehearing is unimportant."Crescent Wharf & Warehouse Company v. Pillsbury, 9 Cir., 93 F.2d 761, 764.

The second hearing was in October, and the compensation order was not issued until the following March, whereas§ 919 provides that the deputy commissioner "shall within twenty days after such hearing is had, by order, reject the claim or make an award in respect of the claim."But this limitation is directory, not mandatory or jurisdictional.Coombs v. Industrial Accident Commission, 76 Cal. App. 565, 245 P. 445;Home Petroleum Company v. Chipman, 106 Okl. 225, 233 P. 738;Fallon v. Hattemer, 229 App.Div. 397, 242 N.Y.S. 93.The insurance carrier did...