221 F.2d 515 | D.C. Cir. | 1954
Appellant, the compensation insurance carrier of the B & J Construction Company, Inc., brought this suit to enjoin the enforcement of a workmen’s compensation award to appellee Blackburn, as the surviving wife of a deceased employee, James E. Blackburn. The complaint asserted that the Deputy Commissioner erred in determining that (1) he had jurisdiction over the injury, and (2) the injury arose out of and in the course of employment. The District Court refused to disturb the Deputy Commissioner’s determinations, and granted his motion for summary judgment. We think this action is supported by the record.
Briefly, these are the pertinent circumstances. The B & J Company maintained its principal office in the District of Columbia, and there engaged in business and employed an office staff. Although, through choice, its construction operations were carried on outside of the District, it hired its employees through the union hiring hall in Washington. In December 1951, the job superintendent on a B & J Company project at Clinton, Maryland, directed the shop steward,
(1) Findings of the Deputy Commissioner “as to jurisdiction are entitled to great weight and will be rejected only where there is apparent error.”
(2) Ordinarily “injuries sustained by employees when going to or re_ turning from their regular place of work * * * ” are not compensable,
In concluding that there was such an undertaking in Cardillo v. Liberty Mutual Ins. Co., the Supreme Court relied heavily upon a union wage agreement wh:.ch imposed a contractual obligation on the employer to provide transportation to jobs situated outside the District of Columbia.
Thus, Hunter was specifically instructed by the job superintendent to arrange for the hiring of two laborers, one of ivhom' was Blackburn. In view of his testimony that because of the distance of the job site from the hiring hall “we have to make some arrangements to get them on the job,” the Deputy Commissioner could well have concluded that Hunter had the incidental authority to arrange for transportation if the new employee had no other means of reaching the job. This being so, it follows that the travel arrangement between Blackburn and Hunter was not merely an arrangement of convenience between two co-employees; rather, it was an arrangement necessary to effectuate the employment of Blackburn, which was made by Hunter in behalf of and as an agent of the employer.
There are two supporting reasons for concluding that, contrary to the ordinary rule, the travel here was incidental to the employment: (1) Blackburn was hired specifically to work on the Maryland project. Thus, as in Cardillo v. Liberty Mutual Ins. Co., “This was not a case of employees traveling in the same city between home and work. Extended cross-country transportation was necessary.”
For the foregoing reasons, the action of the District Court is
Affirmed.
. Cardillo v. Liberty Mutual Ins. Co., 1947, 330 U.S. 469, 474, 67 S.Ct. 801, 805, 91 L.Ed. 1028.
. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U.S.C.A. § 901 et seq.
. D.C.Code § 36-501 (1951), 33 U.S.C.A. § 901 note, emphasis supplied.
. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. at page 476, 67 S.Ct. at page 806. See Travelers Ins. Co. v. Cardillo, 1944, 78 U.S.App.D.C. 394, 141 F.2d 364; B. F. Goodrich Co. v. Britton, 1943, 78 U.S.App.D.C. 221, 139 F.2d 362; Travelers Ins. Co. v. Cardillo, 1944, 78 U.S.App.D.C. 392, 141 F.2d 362.
. Voehl v. Indemnity Ins. Co., 1933, 288 U.S. 162, 169, 53 S.Ct. 380, 382, 77 L.Ed. 676; and see Clark v. Commercial Casualty Co., 5 Cir., 1938, 95 F.2d 58; Morgan v. Hoage, 1934, 63 App.D.C. 355, 72 F.2d 727; Guivarch v. Maryland Casualty Co., 5 Cir., 1930, 37 F.2d 268.
. In Ward v. Cardillo, 1943, 77 U.S.App.D.C. 343, 345, 135 F.2d 260, 262, we recognized four exceptions to the general ru,le as stated in the VoeM case: CD w,here *he employment requires the employee to travel on the highways; (2) where the employer contracts to and does furnish transportation to and from work; ® where the employee is subject to emerSency calls; (4) where the employee uses the highway to do something incidental to Ms employment, with the knowledge and approval of the employer. See Lake v. City of Bridgeport, 1925, 102 Conn. 337, 128 A. 782; Proctor v. Hoage, 1935, 65 App.D.C. 153, 81 F.2d 555,
. Ward v. Cardillo, 1943, 77 U.S.App.D.C. 343, 135 F.2d 260; Reeves v. Liberty Mutual Ins. Co., D.C.N.D.T.ex.1943, 50 F.Supp. 772.
. Cardillo v. Liberty Mutual Ins. Co., 1947, 330 U.S. 469, 484, 67 S.Ct. 801, 91 L.Ed. 1028.
. 330 U.S. at page 479, 67 S.Ct. at page 807.
. The agreement provided that “ ‘Transportation and any necessary expense * * v shall be furnished for all work outside the District of Columbia.’ ” Id., 330 U.S. at page 483, 67 S.Ct. at page 809.
. Article V, Sec. 4 of the present agreement provided in pertinent part: “Contractors! shall pay traveling expenses weekly along with the regular payroll disbursements by parties of the first part to parlies of the second part using the following formula; expenses shall be made as follows: For the area contained in the zone of five (5) road miles from the District of Columbia line there shall be no travel time compensation. For the area of from five (5) road miles to fifteen (15) road miles from the District line the compensation shall be forty (40) cents per da;'. * * * ”
In the Liberty Mutual case, 330 U.S. at page 482, 67 S.Ct. at page 809, the Court ¡said: “To be sure, there are many holdings to the effect that, where the employer merely pays the. costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment; there must be something more than mere payment of transportation costs. But assuming those holdings to be correct and assuming the Deputy Commissioner’s findings in this case to be justified, there is more here than mere payment of transportation costs.”
. Judicial review in workmen’s compensation cases is governed by the Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C.A. § 1001 et seq.; O’Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 483; Richardson v. Britton, 1951, 89 U.S.App.D.C. 391, 192 F.2d 423, certiorari denied, 1952, 343 U.S. 920, 72 S.Ct. 676, 96 L.Ed. 1334.
. 330 U.S. at page 484, 67 S.Ct. at page 810.
. Id. 330 U.S. at page 479, 67 S.Ct. at page 807.