Morgan v. Hoage

• Decision Date: 23 July 1934
• Docket Number: No. 6070.,6070.
• Citation: 63 App. DC 355,72 F.2d 727
• Parties: MORGAN v. HOAGE, Deputy Com'r.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 355, 72 F.2d 727 (1934)

MORGAN v. HOAGE, Deputy Com'r.

No. 6070.

United States Court of Appeals for the District of Columbia.

Argued May 8, 1934.

Decided July 23, 1934.

J. Harry Welch and Frank Paley, both of Washington, D. C., for appellant.

Edward S. Brashears, Wilson L. Townsend, Albert F. Beasley, and Leslie C. Garnett, U. S. Atty., all of Washington D. C., for appellees.

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

PER CURIAM.

This case arises under the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927 (44 Stat. 1424 33 USCA §§ 901-950), made applicable to the District of Columbia by Act of May 17, 1928 (45 Stat. 600 D. C. Code 1929, T. 19, §§ 11, 12).

It appears that James Frederick Morgan on September 29, 1932, was shot by an assailant while in front of his home in the District of Columbia, and that on October 4, 1932, he died as a result of his wounds. At the time of the assault and for some time prior thereto Mr. Morgan was an employee of the government at the United States Navy Yard, and at the same time he held the office of financial secretary of Columbia Lodge No. 174, International Association of Machinists.

The appellant, Eleanor M. Morgan, as his widow, thereupon filed a claim with the Compensation Commission of the District of Columbia for death benefits under the Compensation Act, naming the lodge as deceased's employer and the Standard Accident Insurance Company as the insurance carrier. The Deputy Commissioner, after hearing the testimony, held that the injury from which the deceased died arose out of his employment as financial secretary of the lodge, but that it did not occur in the course of his employment. He therefore rejected the claim.

Mrs. Morgan then filed her bill in equity in the lower court seeking a mandatory injunction to compel the Deputy Commissioner to set aside the order of rejection and to award compensation. The lower court dismissed the bill and the present appeal was taken from that decree.

The sole employment of the deceased involved in the present case is that of financial secretary of the lodge as above stated. It appears that the duties of financial secretary were to collect the dues from the members of the lodge; these were first collected from the individual members by the shop stewards in each shop; the stewards then delivered their reports together with the money collected by them to the financial secretary. When a shop steward turned the money over to the financial secretary, the latter would take each man's card, put a stamp thereon, and return the same to the shop steward. This was generally done after work hours, but sometimes the shop stewards would turn the money over to Mr. Morgan in the morning, or they might give him the money when at work, or at noon on pay days, or in the evening when he would meet a few at the office. These duties were largely of a clerical nature and it was Mr. Morgan's custom to work at the lodge hall which was located at Fourth street and Pennsylvania Avenue S. E., every evening except Saturdays and Sundays from about 7 p. m. to approximately 11 or 12 p. m., and also to work at the lodge hall on Saturday mornings.

On the date of the shooting he left his employment at the Navy Yard and proceeded to his home at 3629 Jocelyn Street N. W., Washington, D. C.; and at that time he had in his possession some money which he had collected from members of the lodge and some books which belonged to the lodge which, as a matter of convenience, he was taking to his home with the intention of bringing them to the lodge hall when he returned that evening. After having his dinner at his home some time between 6 and 7 p. m., he informed his family of his intention of going to the lodge hall, whereupon he left the house, walked out on the sidewalk to the street, and as he was about to enter his automobile, or had already entered it for the purpose of driving to the lodge hall, he was shot by a man named Kieser and died as a result of his wounds. It appears that Kieser committed the crime from a wholly unjustifiable resentment against Morgan arising from the latter's inability to induce the lodge to pay to Kieser a sum of money which Kieser claimed to be due him.

The Deputy Commissioner found upon the facts that the injury resulting in Morgan's death arose out of his employment by the lodge, but that it did not occur in the course of such employment. The sole question before us is whether this finding is, or is not, supported by substantial evidence in the record. Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598; Voehl v. Indemnity Insurance Company, 288 U. S. 165, 53 S. Ct. 380, 77 L. Ed. 676, 87 A. L. R. 245; Powell v. Hoage, 61 App. D. C. 99, 57 F.(2d) 766.

We are of the opinion that the finding of the Deputy Commissioner is supported by the evidence. In section (2) of the Compensation Act (33 USCA § 902) it is provided: "The term `injury' means accidental injury or death arising out of and in the course of employment." In In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, it is said: "In order that there may be recovery the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. * * * It is sufficient to say that an injury is received `in the course of' the employment when it comes while the workman is...