New Amsterdam Casualty Co. v. Hoage

• Decision Date: 28 November 1932
• Docket Number: No. 5493.,5493.
• Citation: 62 F.2d 468,61 App. DC 306
• Parties: NEW AMSTERDAM CASUALTY CO. v. HOAGE, Deputy United States Employees' Compensation Com'r.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 306, 62 F.2d 468 (1932)

NEW AMSTERDAM CASUALTY CO. v. HOAGE, Deputy United States Employees' Compensation Com'r.

No. 5493.

Court of Appeals of the District of Columbia.

Argued October 11, 1932.

Decided November 28, 1932.

Lawrence Koenigsberger, of Washington, D. C., for appellant.

Leo A. Rover and John J. Wilson, both of Washington, D. C., for appellee.

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

MARTIN, Chief Justice.

This is an appeal from a decree of the lower court dismissing a bill of complaint filed by the New Amsterdam Casualty Company, as plaintiff, against the deputy compensation commissioner as defendant, challenging an award of compensation made under the provisions of section 2 (2) of the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. pt. 2, 1424 (33 USCA § 902 (2) made applicable to the District of Columbia by Act of May 17, 1928, 45 Stat. 600 (D. C. Code 1929, T. 19, §§ 11, 12, 33 USCA § 901 note).

The suit was brought in the lower court under section 21 (b) of the act (33 USCA § 921 (b), and in the bill of complaint the plaintiff sets out in full all of the testimony taken by the deputy compensation commissioner upon which the award was based, and claims that upon the undisputed facts thereby established the award was contrary to law. Plaintiff prayed that an injunction be issued restraining the enforcement of the award and requiring that it be vacated and set aside. A motion was filed by the defendant to dismiss the bill, claiming that it failed to state a ground for relief. The lower court sustained the motion and dismissed the bill. This appeal was then taken.

It appeared from the testimony that on November 25, 1930, one John Brosnan, Jr., while pursuing his employment as a solicitor for the Washington Post Company, a newspaper publishing company, undertook to cross a public street in the city of Washington, and suddenly fell upon the street, suffering a fracture of the skull from the fall, and that within a few days afterwards death followed from the fracture. The deceased was covered by a policy issued to his employer under the provisions of the Compensation Law for compensation to employees for "accidental injury or death arising out of and in the course of employment."

The accident occurred at about 11 o'clock in the forenoon of the day in question. Brosnan was seen by witnesses while crossing the street; they observed that he suddenly threw his hands up over his head and fell to the ground; that he was not struck by an automobile or other outward force; that the witnesses could not see what made him fall; that he "looked like a man who could not hold his feet," and "just went down, kind of easy." He was conscious when picked up, but gave no account of the cause of his fall. Brosnan was 45 years old, weighed about 160 pounds, and was in ordinary health, working every day. He was not intoxicated at the time of the accident, nor is willful intent upon his part alleged. A post mortem was had which revealed that the fracture of the skull was the cause of his death. There was no evidence of apoplexy or cerebral hemorrhage except that resulting from the fracture, nor was there evidence of epilepsy. It appeared that in former years Brosnan had been addicted to the use of intoxicants, and that this had possibly impaired some of the organs of his body, but the evidence did not disclose that the fall had resulted from such a cause. From the record it appears probable that Brosnan's fall was occasioned by a loss of balance due to stumbling, slipping, or sudden dizziness while crossing the street.

Upon these facts it was found by the deputy compensation commissioner that Brosnan's death was caused by an accidental injury arising out of and in the course of his employment; whereupon a suitable determination for the payment of compensation was made by the deputy commissioner.

It is conceded by appellant that Brosnan sustained the injury "in the course of" his employment, and the sole question in the case is whether the deputy commissioner was justified in finding upon the foregoing facts that the death of Brosnan was caused by an accident "arising out of" his employment. In considering this question, it must be observed that the findings of fact made by the deputy commissioner are final and conclusive in so far as they are supported by any competent evidence, and also that it is to be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the act. Compensation Act, § 20 (a), 44 Stat. 1436.

Appellant contends that the foregoing facts establish that Brosnan's fall was not due to any of the hazards of his employment, such as a traffic accident, nor even due to the hazard of walking along the street, but was such an injury as could have happened to him wherever he might have been, and that the evidence showed certain derangements of his internal organs which might have caused his fall. Appellant accordingly contends that decedent's fall was "due to some cause within himself," and was not to any extent traceable to his employment, and that the presumption provided for by section 20 (a) of the Compensation Law does not apply.

We are of the opinion that the facts as disclosed by the record are sufficient to sustain the decision of the deputy commissioner. It is conceded that at the time of the accident Brosnan was acting in the course of his employment. He was a solicitor for a newspaper and his duties required him to go from place to place within the city. This implied that his travels might properly be made on foot and that he might traverse the sidewalks and the streets of the city in the course of his employment. It follows that Brosnan while so walking upon the city streets was proceeding similarly to a workman walking upon the floor of a factory or workshop. It was therefore the pursuit of Brosnan's employment which placed him in the position in which he suffered the accidental fall resulting in his death.

In the early administration of compensation laws, the rule was often adopted that...