O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.

Mr. Justice Harlan,

whom Mr. Justice Clark and Mr. Justice White join,

dissenting.

Ecker was employed in Seoul, Korea, as an assistant administrative officer for Smith, Hinchman & Grylls Associates, Inc., an engineering management concern working under contracts with the United States and Korean Governments. His duties were restricted to Seoul where he was responsible for personnel in the stenographic and clerical departments. He was subject to call at the job site at any time, but the usual work week was 44 hours, and employees were accustomed to travel far from the job site on weekends and holidays for recreational purposes. Ecker did not live at the job site; he was given an allowance to live on the economy in Seoul. On his Memorial Day weekend he went to a lake 30 miles east of Seoul where a friend of his (not a co-employee) had a house. Ecker intended to spend the holiday there with his friend and another visitor. Their Saturday afternoon project was to fill in the beach in front of the house with sand, but none was readily available. In order to obtain it the three crossed the lake in a small aluminum boat to a sandy part of the shore. There they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes’ Principle to the test; in the middle of the lake the boat capsized and sank. Two of the three men drowned, including Ecker.

*366 The Longshoremen’s and Harbor Workers’ Compensation Act, 1 as extended by the Defense Bases Act, 2 provides workmen’s compensation for any

“accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out- of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” 33 U. S. C. § 902 (2).

The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500 ). That interpretation, although meaningful, is unsupportable.

O’Leary v. Brown-Pacific-Maxon., Inc., 340 U. S. 504 , relied upon by the Court, did not establish such a rule. The Court there upheld a compensation award arising from the accidental death of an employee of a government contractor on the island of Guam. The employer maintained for its employees a recreation center near the shoreline along which ran a very dangerous channel. After spending the afternoon at the employer’s recreation center, and while waiting for the employer’s bus, the employee heard cries for help from two men in trouble in the channel. He drowned in his attempt to rescue them. Mr. Justice Frankfurter, writing for the Court, stated the standard of coverage as:

“All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special *367 danger’ out of which the injury arose.” 340 U. S., at 507 .

That language was intended to mean only that where the employer had placed a facility for employees in an especially dangerous location and thus had created a danger of accidents, a “reasonable rescue attempt” could be “one of the risks of the employment.” This was made crystal clear by the caveat: “We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.” Ibid.

He went on to state that the standard of review to be applied to the Deputy Commissioner’s finding that the employee died in the course of his employment was the same as that set out in Universal Camera Corp. v. Labor Board, 340 U. S. 474 , for review of Labor Board decisions. Mr. Justice Frankfurter wrote both Universal Camera and Brown-Pacific-Maxon, and delivered the opinions on the same day. Reliance upon Universal Camera in Brown-Pacific-Maxon shows beyond doubt that the Court was not establishing a rule that any compensation award by a Deputy Commissioner would be automatically upheld, for it was the whole purpose of Universal Camera to effectuate congressional intent that the courts expand their scope of review over administrative decisions. That opinion defined judicial responsibility for examining the whole record in Labor Board cases, and not just those parts of the record which tended to support the Board. It remains today as the leading judicial guide for administrative review, and the most prominent directive to lower courts not to underestimate their responsibilities in this regard. I think it untenable to read a case which purports to apply the Universal Camera standard of review as embodying a philosophy of judicial abdication.

*368 I read Brown-Pacific-Maxon to mean that some questions of application of “arising out of and in the course of employment” to the facts of a case will be left to the discretion of the administrator, and review of his decision treated as review of a finding of fact. The cases in which this limited review of the administrator’s decision is appropriate are those in which one application of the statute to the external facts of the case effectuates the judicially recognizable purpose of the statute as well as another. Dominion over the broad or clear purposes of the statute thus remains firmly in the courts’ hands, while within the confines of such statutory purposes, administrators are left discretion to provide the intimate par-ticularizations of statutory application. 3 Brown-Pacific-Maxon is illustrative. The employee drowned in a particularly treacherous channel with which his job brought him into proximity. The danger was not great that circumstance would force him to swim in the channel, but the danger existed and was peculiar to the locality to which his job brought him; and it was out of this special danger that the employee’s injury arose. This, taken together with the other elements of job connection which the administrator thought relevant, rendered an award in the case consistent with the broad purposes of the compensation statute. Yet had the Deputy Commissioner come out the other way, I think that his decision would have been equally supportable. Although it was true that the injury was related to an especially dangerous channel with which the employee’s job brought him into proximity, the administrator could have ruled that the danger, although special, was so remote that the connection between the job and the injury was not sufficient to justify compensation. Either result would have been *369 consistent with the statutory purpose of compensating all job-connected injuries on the actual job site and, additionally, those injuries off the job site which result from the “special” dangers of the employment. In the sense that both results would have been supportable, the review of the choice actually made by the Deputy Commissioner was treated as review of a finding of fact.

In the case before us, the Deputy Commissioner’s ruling is not consistent with the statutory purpose. The injury did not take place on the actual job site, and it did not arise out of any special danger created by the job. In no sense can it be said that Ecker’s job created any “special” danger of his drowning in a lake, or more particularly, of his loading a small boat with sand and capsizing it. Nothing indicates that the lake was rougher, the boat tippier, or the sand heavier than their counterparts in the United States. If there were “exacting and unconventional conditions” in Korea it does not appear that the lake, boat, or sand was one of them. There is nothing more than a “but for” relationship between the accident and the employment. To permit the award of compensation to stand reads the “job-connected” emphasis right out of the statute, an emphasis which is clearly there. Only injuries “arising out of” the employment are compensated. A disease or infection is covered if it arises “naturally out of such employment.” Injuries willfully inflicted by third persons upon an employee are covered only if inflicted “because of his employment.” A “but fpr” relationship between the injury and the employment should not in itself be sufficient to bring about coverage.

Whether the injury is compensable should depend to some degree on the cause of the injury as well as the time of day, location, and momentary activity of the employee at the time of the accident. I would distinguish between *370 a case in which Ecker smashed his hand in a filing cabinet while at the office and one in which he tripped over a pebble while off on a weekend hike. In the first case Ecker’s injury would have arisen out of and in the course of his employment, whereas the statute would not apply to the second case unless the injury were traceable to some special .danger peculiar to the employment, which was clearly not the case. Thus, if while off on that same weekend hike Ecker stepped on a mine left over from the Korean conflict, á different result could follow.

This view of the statute makes far more sense to me than the view adopted by the Court as indicated by the result in this case and its approving citation of such cases as Self v. Hanson, 305 F. 2d 699 , and Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70 , cert. denied today. It is difficult to determine just what such cases stand for. In Self v. Hanson , for instance, Miss Williams was in the company of a gentleman in a pick-up truck parked at the end of a breakwater on Guam Island at 11 o’clock in the evening. The gentleman said that he wanted to show her a ship in the harbor. Apparently they had been looking at it for over-half an hour when the driver of another vehicle on the breakwater lost control and ran into the pick-up truck, causing Miss Williams spinal injuries. The Ninth Circuit upheld the Deputy Commissioner’s ruling that she was injured in the course of her employment as a secretary on a Guam defense project.

To permit compensation for such injuries is to impose absolute liability upon the employer for any and all injuries, whatever their nature, whatever their cause, just so long as the Deputy Commissioner makes an award and the job location is one to which the reviewing judge would not choose to go if he had his choice of vacation spots. Before setting its stamp of approval on such an interpretation of the statute, the Court at the very least should *371 hear argument and receive briefs on the- merits. The Solicitor General has pointed out that “there are several thousands of injury cases reported annually” under this Act. 4 He urged that this question be definitively resolved by this Court. Because of the importance placed by all parties upon resolution of the proper application of the Act to these cases, and because I do not believe Brown-Pacific-Maxon, supra, dictates the Court’s result, I respectfully dissent from its decision to treat O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., summarily, from its decision on the merits in that case, and from its denial of certiorari in Pan-American World Airways, Inc. v. O’Hearne, No. 474, and Pan American World Airways, Inc. v. O’Keeffe, No. 852.

Mr. Justice Douglas, dubitante.

The problems under this Act should rest mainly with the Courts of Appeals. * What we said in Universal Camera Corp. v. Labor Board, 340 U. S. 474, 490 , of review by Courts of Appeals of decisions of the National Labor Relations Board, should be applicable here :

“Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the *372 Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”

Applying that test I would not be inclined to reverse a Court of Appeals that disagreed with a Deputy Commissioner over findings as exotic as we have here.

44 Stat. 1424 , as amended, 33. U. S. C. §901 et seq. (1958 ed.).

55 Stat. 622 , as amended, 42 U. S. C. §1651 et seq. (1958 ed.).

See generally, Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239 (1955).

Petition for certiorari in No. 307, p. 11.

These problems are unlike those under the Federal Employers’ Liability Act where suits can be brought both in state and in federal courts ( 45 U. S. C. § 56 ) and where the law, poorly received by the judiciary, has been severely eroded. See Wilkerson v. McCarthy, 336 U. S. 53 , 68 et seq. (concurring opinion).