Travelers Ins. Co. v. Cardillo

• Decision Date: 20 December 1943
• Docket Number: No. 8521.,8521.
• Citation: 78 US App. DC 255,140 F.2d 10
• Parties: TRAVELERS INS. CO. v. CARDILLO, Deputy Com'r, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

78 US App. DC 255, 140 F.2d 10 (1943)

TRAVELERS INS. CO. v. CARDILLO, Deputy Com'r, et al.

No. 8521.

United States Court of Appeals District of Columbia.

Argued November 1, 1943.

Decided December 20, 1943.

Mr. Ernest A. Swingle, of Washington, D. C., with whom Messrs. Edwin A. Swingle and Allan C. Swingle, both of Washington, D. C., were on the brief, for appellant.

Mr. Ward E. Boote, Chief Counsel, United States Employees' Compensation Commission, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Bernard J. Long, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee Cardillo.

Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.

ARNOLD, Associate Justice.

This is an appeal from the judgment of the District Court dismissing a bill for review of a workman's compensation award. The sole issue is whether the evidence before the Deputy Commissioner is sufficient to sustain a finding that the injury arose out of the employment.¹

The employee, John Oster, was an ice technician working at a public skating rink and stadium. His duties required that he be on the job during the night. For the convenience of his employer, as well as for his own convenience, he slept in a small room underneath the stadium seats, which was reached by a stairway leading to a trap door in the floor. On the night of the injury the watchman making his rounds heard Oster screaming for help in his room. The watchman tried to get in but found the trap door locked from the inside. While he was getting a sledge hammer to break in, Oster managed to push back the bolt holding the trap door. When the watchman opened the door Oster slid down the stairs. He was discovered to have been beaten, his hands and feet tied and set on fire with highly inflammable paint thinner. His injuries were serious and permanent. So much of the evidence is uncontradicted.

Oster testified that he had gone out to a restaurant after finishing his work sometime after midnight and had returned between three a.m. and four a.m. He threw himself on the bed without undressing and went to sleep. He was awakened by two or three men, one of whom had a flashlight and a gun. They asked him for money and he thought they were after the night's receipts, which he did not keep. He was rendered unconscious by a blow which cut him severely under the chin, and when he recovered consciousness his hands and feet were tied and he was on fire from paint thinner which had been poured on the floor and ignited. While the watchman was getting the sledge hammer he managed to release the bolt holding the trap door, and, when the door was opened, slid down the steps. There was about four hundred dollars under his pillow but it was not taken, and there was no evidence that the room had been searched.

Appellant attacks the finding of the Deputy Commissioner that the injury arose out of the employment, on the ground that the record shows no adequate explanation of how the assailants got into the room, or how they got out, or what the motive of the assault was. It was shown beyond question that they did not enter the window. Oster testified that when he retired at four a.m. he locked the trap door with a bolt. This would make it impossible for them to have entered by that means after Oster had gone to sleep. There is no evidence that anyone came out of the room through the trap door after the watchman had discovered and rescued Oster. There is testimony from a policeman that Oster told him, during the period of convalescence from his injuries, about inviting some women to his room whose names he refused to disclose. The policeman also testified that Oster was extremely non-cooperative in assisting the officials in solving the crime. On the face of the record, if we are to...