Pittsburgh SS Co. v. Brown

• Citation: 171 F.2d 175
• Decision Date: 22 November 1948
• Docket Number: 9447.,9446,9443,No. 9442,9442
• Parties: PITTSBURGH S. S. CO. v. BROWN. PITTSBURGH S. S. CO. v. KOCHEN.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

171 F.2d 175 (1948)

PITTSBURGH S. S. CO. v. BROWN.

PITTSBURGH S. S. CO. v. KOCHEN.

Nos. 9442, 9443, 9446, 9447.

United States Court of Appeals Seventh Circuit.

November 22, 1948.

Otto Kerner, Jr., U.S. Atty., of Chicago, Ill., H. G. Morison, Asst. Atty. Gen., Leavenworth Colby and Alvin O. West, Attorneys, Department of Justice, Ward E. Boote, Chief Counsel, and Herbert P. Miller, Assistant Chief Counsel, Bureau of Employees' Compensation, and Paul A. Sweeney, Atty., Department of Justice, all of Washington, D. C., and Walker Butler and Victor M. Theis, both of Chicago, Ill., for appellants.

Carl A. Schipfer, McAlister Marshall and W. Alexander Eldridge, all of Cleveland, Ohio, and Harlan L. Hackbert, of Chicago, Ill. (McKeehan, Merrick, Arter & Stewart, of Cleveland, Ohio, and George William Cottrell and Knapp, Cushing, Hershberger & Stevenson, all of Chicago, Ill., of counsel), for appellee.

Before MAJOR, Chief Judge, and SPARKS and MINTON, Circuit Judges.

MAJOR, Chief Judge.

These appeals are from an order of the District Court in an action instituted by the plaintiff pursuant to the provisions of Sec. 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C.A. § 921(b), seeking an injunction to restrain the enforcement of a compensation order theretofore entered by the defendant Leonard C. Brown, Deputy Commissioner. By the order sought to be set aside, the Deputy Commissioner after a hearing in which all interested parties participated awarded compensation as provided by the Act to the defendant Myrtle Kochen, the widow of Harry J. Kochen. The deceased was employed by the plaintiff on one of its ships located in winter quarters along the east bank of the Calumet River in South Chicago. In view of the questions raised before this court, we think there is no occasion to relate either the testimony heard by the Deputy Commissioner or the findings and conclusions upon which his compensation order was predicated.

The lower court, 81 F.Supp. 284, allowed plaintiff's motion for a trial de novo of the single issue as to whether the deceased lost his life as the result of an accidental injury occurring on the waters of the Calumet River, admittedly a public navigable waterway. Upon this issue the court held that the burden of proof was upon the claimant and refused to consider the transcript of testimony taken before the Deputy Commissioner relative to such issue. The court found:

"No evidence whatever was produced by or in behalf of the defendant, Myrtle Kochen, as Compensation Claimant, or by or in behalf of the defendant, Leonard C. Brown, as Deputy Commissioner, or either of them, at the Trial de Novo held before this Court on the 24th day of March, 1947, on the basic constitutional jurisdictional issue as to whether Harry J. Kochen, deceased, lost his life as the result of an accidental injury occurring upon the Calumet River, a public navigable waterway of the United States."

The court concluded that "they defendants and each of them have failed to sustain the Burden of Proof and, therefore, defendant, Leonard C. Brown, as Deputy Commissioner, is and was wholly without jurisdiction of the subject matter to make and file the Compensation Order and Award * * * and said Compensation Order and Award is wholly void, of no effect and should be set aside." Thereupon, the court awarded a permanent injunction enjoining the defendant, Leonard C. Brown, as Deputy Commissioner, from making any compensation award and order in favor of the defendant Myrtle Kochen as compensation claimant and against the plaintiff as former employer of the said Harry J. Kochen, deceased, and also enjoining the defendant Myrtle Kochen from accepting any award or benefits under the Act arising out of the loss of life of the said Harry J. Kochen, deceased.

Thus, the questions for decision are (1) was the plaintiff entitled to a trial de novo before the District Court? (2) if the plaintiff was entitled to such a trial, did the court err in placing the burden of proof on the compensation claimant? and (3) did the court err in refusing to receive in evidence the transcript of testimony taken before the Deputy Commissioner as bearing upon the single issue in dispute?

The rulings of the District Court are based almost entirely upon the decision of the Supreme Court in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, which leaves no room for argument but that plaintiff was entitled to a trial de novo on the issue as to whether the injury occurred upon the navigable waters of the United States. This is tacitly conceded by defendants, but it is argued that the holding in that case no longer retains vitality in view of later decisions of the Supreme Court. A good portion of the briefs in the instant case are devoted to an analysis, discussion and interpretation of the opinion in the Crowell case; in fact, the argument before this court makes it appear that the contested issue is the holding of the Supreme Court in that case. The opinion in the Crowell case is lengthy and certainly no good purpose could be served in reviewing or quoting its language in detail. Its basic doctrine is well stated by plaintiff in its brief as follows:

First: That two constitutional jurisdictional facts are involved, viz.:

(1) Master and servant relationship;

(2) Occurrence on navigable waters.

When either or both of said fundamental issues are involved, the losing party before the Administrative Board (the Deputy Commissioner) is entitled to a trial de novo before the District Court.

Second: As to statutory jurisdictional issues of fact:

All remaining questions in applying the Longshoremen's Act such as:

(1) Whether injury arose out of and in course of employment;

(2) Nature of injuries;

(3) Extent of injuries;

(4) Consequences of injuries;

(5) Amount of compensation;

(6) Relationship to deceased, etc.

When any of such issues are involved, the losing party before the Deputy Commissioner is only entitled to have the record before the Deputy Commissioner reviewed by the District Court; whereupon the District Court may not weigh the evidence, but can only determine whether there was substantial evidence before the Deputy Commissioner to support his finding or findings. If so, the District Court must affirm.

In an effort to persuade us that this decision should not be followed, numerous law review articles and text book authorities are cited which have criticized the opinion. We need not go so far afield, however, to find criticism of the opinion because it was severely criticized at the time it was rendered in a dissenting opinion joined in by three members of the court. In our view, this criticism furnishes no justification for a refusal either on the part of this court or the lower court to follow it. Numerous cases are cited in support of the contention that the Crowell case no longer retains its vitality, the most important of which are Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, and Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 67 S.Ct. 801. A study of these cases, however, makes it plain that neither of the constitutional jurisdictional questions which the court considered in the Crowell case was involved. None of the cases relied upon by the defendants in this respect, including the two just referred to, furnish any substantial basis for the contention that the Crowell case is no longer binding upon inferior federal courts.

On the other hand, the Crowell case has been cited by the Supreme Court with approval. Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 184, 59 S.Ct. 160, 83 L. Ed. 111; Baltimore & O. R. Co., et al. v. United States, et al., 298 U.S. 349, 368, 56 S.Ct. 797, 80 L.Ed. 1209; Borax, Ltd. v. Los Angeles, 296 U.S. 10, 18, 56 S.Ct. 23, 80 L.Ed. 9. And it has been frequently followed by lower courts, including this court in South Chicago Coal & Dock Co. v. Bassett, 7...