# Dixie Sand & Gravel Corporation v. Pauline Holland

> Court of Appeals for the Sixth Circuit · May 1, 1958 · 255 F.2d 304

URL: https://www.frixlaw.com/law-library/cases/9446170

## Case

- **Full name:** DIXIE SAND & GRAVEL CORPORATION, Appellant, v. Pauline HOLLAND, Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 1, 1958
- **Citations:** 255 F.2d 304; 1959 A.M.C. 1701; 1958 U.S. App. LEXIS 5307
- **Precedential status:** Published
- **Opinion:** Dissent by McALLISTER
- **Judges:** McALLISTER, Miller, Stewart
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446170

## How later opinions describe it (automated extraction)

- holding that an allegation from a prior state court case was not binding on the appellant, even though it was contradictory to the appellant’s present contention

## Opinion text

McALLISTER, Circuit Judge
(dissenting) .
I regret that I am unable to concur in the views of my colleagues. The only issue in this case is whether the death of Mr. Holland arose out of, and in the course of, his employment with appellant company. In my opinion, the facts clearly show that his death did arise out of, and in the course of his employment.
George F. Holland met his death on navigable waters during working hours, while inspecting his employer’s barges. The night on which his death occurred was stormy. Mr. Bowman, the night watchman, custodian, and general caretaker of the barges, thought that the wind was so severe that it was necessary to go out on the barges and check on them. He and Holland, who was the night clean-up man, thought that some of the barges might have come loose.
When, on a prior occasion, Bowman had called the superintendent and told him that a barge was in distress, the superintendent had told him to get Holland and have him help in pumping the barge out -and Holland had helped Bowman in that situation. It was a hazardous and dangerous matter for one man alone to go out on the outside barge, take the pump down, and do any work at night. At least two men were needed in such a situation. Bowman had authority to do whatever he could about the barges, in case of an emergency.
Just before they made the last round that night, Holland talked with Bowman. At that time, the wind had risen. Holland then asked Bowman if the barges were in good shape. When Bowman told him they were all right on his last round — before the wind had come up— Holland stated that he would go with him when he made his eleven o’clock round and would help him check the barges before he, Holland, left for the night. Holland indicated to Bowman that he thought he might have some trouble out there on the barges on that particular round. Holland then waited for Bowman while the latter went to do some work “on the river” and when Bowman returned, both men went down river to the barges. Bowman stated that the only time Holland had gone with him before was when he called him to help pump a barge. There were only two men, at night, on appellant’s premises. Holland was the only man that Bowman could call upon for help, although he did not request Holland to help him that night. But he did not decline such help.
Holland and Bowman had made their way to the outermost barge before Holland, on their return to shore, slipped between the barges and fell into the river.
At the time of his death, Holland was making the round with Bowman to see if the barges were securely fastened.
The superintendent testified that he considered Holland a loyal and faithful employee of appellant company, and said that it was characteristic of Holland to be out on the barges trying to help Bowman at the time he met his death.
In my view, the foregoing evidence shows that decedent’s death arose out of, and during the course of his employment.
In this case, we start with a presumption — a statutory presumption — that this *312 claim comes within the provisions of the Act. And that presumption continues in the absence of substantial evidence that the claim does not come within the Act. Title 33 U.S.C.A., § 920 . If the injury occurs on the employer’s premises during the employee’s working hours, there is a presumption that the injury arose out of the employment, unless the contrary is shown. Travelers Insurance Co. v. Car-dillo, 78 U.S.App.D.C. 255 , 140 F.2d 10 . The presumption shifts the burden of going forward with the evidence to show that the injury did not arise out of the employment. Liberty Mutual Ins. Co. v. Donovan, D.C., 124 F.Supp. 320 .
The Act must be liberally construed in favor of the injured employee. If there is any doubt, it must be resolved in favor of the injured employee or his family. General Accident, Fire & Life Assur. Corp. v. Crowell, 5 Cir., 76 F.2d 341 ; Southern Pacific Co. v. Sheppeard, 5 Cir., 112 F.2d 147 .
An employee’s injury may be held to have arisen out of his employment although his conduct was not within the scope of his authority, nor strictly within the line of his duty. It is sufficient if it-was reasonably related to the service he was employed to render and was, in good faith, undertaken in furtherance of his employer’s business. In the case of Ex parte Terry, 211 Ala. 418 , 100 So. 768, 769 , the court said:
“The effect of these and other well-considered cases is to firmly establish the principle, based of course upon the theory of a liberal rather than a strict or narrow construction, that an employé’s injury may be properly held to have arisen out of his employment notwithstanding that the act or conduct of the em-ployé to which the injury is proximately referable was not within the scope of his authority nor strictly within the line of his duty, provided it was reasonably related to the service he was employed to render and was in good faith done or undertaken in furtherance of the employer’s business; and-notwithstanding, also, that the injury in question was not one of the anticipated risks of the service.”
In Waters v. William J. Taylor Co., 218 N.Y. 248, 251 , 112 N.E. 727, 728 , L.R.A.1917A, 347, the Court of Appeals said:
“[The Workmen’s Compensation Law, McKinney’s Consol.Laws, c. 67] is framed on broad principles for the protection of the workman. Relief under it, generally speaking, is not based on the negligence of the employer, or limited to the absence of negligence on the part of the employe. It rests on the economic and humanitarian principles that compensation should be given at the expense of the business to the employe or his representatives for earning capacity destroyed by an accident in the course of or connected with his work, and this not only for his own benefit, but for the benefit of the state, which otherwise might be charged with his support. This purpose ought not to be defeated by placing too narrow a limit upon the nature of the acts which will be regarded as pertaining to his employment.
“Of course what we thus say is to be read in the light of the facts presented on this appeal. There is no trouble in outlining a case where an employe, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.”
Nearly all the cases in the federal courts before O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 , 71 S.Ct. 470, 471 , 95 L.Ed. 483 , held, or at least, intimated that there must be some causal relation shown between the nature of the employment of the injured person, and the accident. In the lower court in that case, the Court of Appeals of the *313 Ninth Circuit, in reversing an award to an employee under the Longshoremen’s and Harbor Workers’ Act, placed its decision on the ground that the conduct in which the deceased employee was engaged at the time he met his death was entirely disconnected from any use for which certain recreational premises were provided, and which the employee was using at the time, and, therefore, did not occur in the course of decedent’s employment. Brown-Pacific-Maxon, Inc. V. O’Leary, 9 Cir., 182 F.2d 772 .
On appeal, the Supreme Court reversed the Court of Appeals and affirmed the award of the Deputy Commissioner. The more detailed statement of facts of the case discloses that an employee of the corporation in question met his death by drowning in attempting to rescue four other employees, who were swimming near a reef off the coast of Guam. The employer maintained a recreation center for its employees on the shore of the island where a swimming pool, camp grounds, and a club were located. The recreation center was open to the employees every day, including Sunday. Half a mile at sea and parallel with the shoreline of the camp was the reef in question. At the swimming pool there was a huge sign posted prohibiting swimming in the channel, and permitting no one on the reef. One of the employees who had been swimming on the shore was about to leave the pool when he heard someone on the reef calling for help. He went to the rescue of the person, and in his attempt to save the life of the person on the reef, lost his own life in the forbidden area of the dangerous current. In its opinion, the Supreme Court said:
“Workmen’s compensation is not confined by common-law conceptions of scope of employment. * * * The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ’obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.”
Of course, the deceased, in the instant case, was not employed to inspect the barges. But he was inspecting them for the benefit of his employer at a time when both the foreman and the deceased considered that there might be an emergency situation because of the rising of the wind along the river; and he met his death while working on his employer’s behalf. A finding that Mr. Holland’s death did not arise out of, and in the course of his employment would certainly leave this court with the definite and firm conviction that a mistake was committed and that, therefore, the finding was clearly erroneous. United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 .
Although the Deputy Commissioner found that Mr. Holland was working as an employee of appellant company at the time of his death, and that he met his death as a result of falling between appellant’s barges while checking to see if they were secure in the dead of night, the Deputy Commissioner did not make a finding that the death of Mr. Holland arose out of, and in the course of his employment. It is, therefore, proposed to remand the case to the Deputy Commissioner for a finding as to whether or not the death of Mr. Holland arose out of, and in the course of his employment.
If the proofs clearly disclose that the accident arose out of and during the course of the employment, and a finding to the contrary by the Deputy Commissioner would be clearly erroneous, there would seem to be no reason to remand the case to the Deputy Commissioner. In this regard, I would think that the same rule would apply as where a district court had omitted to make findings in a case where the facts were not disputed. In Yanish v. Barber, 9 Cir., 232 F.2d 939, 947 , the court said:
“A recognized exception to the general rule, requiring a case to be sent back for a lack of findings, is *314 where ‘ * * * the record considered as a whole does not present a genuine issue as to any material fact’ * * * in view of the lack of dispute or contradiction in the record, this case should not be remanded for further findings. * * * See Keehn v. Alaska Industrial Board, 9 Cir., 1956, 230 F.2d 712, 714 , where, though the findings were ‘not artful,’ the alternative of sending the case back to the District Court for more detailed findings, was characterized as ‘an idle act, since we think the court clearly indicated the basis for its decision.’ ”
It is said that the Deputy Commissioner may draw inferences from the basic facts and may find that the death of Mr. Holland did not arise out of, and in the course of his employment; and if he makes such a finding, it is implied that such a finding is conclusive. In this regard, United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 , is cited in support of the rule that reasonable inferences drawn by a trial court from uncontradicted facts are controlling on review unless clearly erroneous. This case does not, however, seem to support the proposition that where the basic facts are undisputed, the reviewing court is bound by the inferences drawn by the trial court — or, in other words, that since the facts in this case are undisputed, we would here be bound by the conclusions of the Deputy Commissioner. Whether the reviewing court is so bound would seem to depend upon the nature of the basic facts.
In the Gypsum ease, the documentary evidence showed that a group of competitors entered into a series of separate but similar agreements with competitors or others. It was held that, in such a case, a strong inference arose that such agreements were the result of concerted action. The Supreme Court said that although the authors of such documents denied that they had acted in concert and although the trial court, having the opportunity to appraise the credibility of such witnesses, found that there was no concert of action, nevertheless, the Supreme Court was left with the definite and firm conviction that a mistake had been committed by the trier of facts and that its findings were, therefore, clearly erroneous. This determination seems not in conflict with the views set forth herein.
However, the expression on the subject that best applies to the instant case appears to be that stated by Mr. Justice Frankfurter in Baumgartner v. United States, 322 U.S. 665, 670, 671 , 64 S.Ct. 1240, 1243 , 88 L.Ed. 1525 , when he said:
“The conclusiveness of a ‘finding of fact’ depends on the nature of the materials on which the finding is based. The finding even of a so-called ‘subsidiary fact’ may be a more or less difficult process varying according to the simplicity or subtlety of the type of ‘fact’ in controversy. Finding so-called ultimate ‘facts’ more clearly implies the ap-lication of standards of law. And so the ‘findings of fact’ even if made by two courts may go beyond the determination that should not be set aside here. Though labeled ‘finding of fact’, it may involve the very basis on which judgment of fallible evidence is to be made. Thus, the conclusion that may appropriately be drawn from the whole mass of evidence is not always the ascertainment of the kind of ‘fact’ that precludes consideration by this Court.”
Thus it appears that the conclusion of ultimate facts is for the reviewing court,, where the trial court has merely found! the basic facts. Moreover, insofar as the so-called “ultimate fact” is simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, it is subject to review free of the restraining impact of the so-called' “clearly erroneous” rules, Lehmann v. Acheson, 3 Cir., 206 F.2d 592, 594 ; Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217, 219 .
*315 In Kuhn v. Princess Lida of Thurn & Taxis, 3 Cir., 119 F.2d 704, 705 , the court said:
“The appellee reminds us that we are not at liberty to disturb findings of fact made by the trial court unless they are unsupported by evidence or are otherwise clearly erroneous. Rule 52(a), 28 U.S.C.A. following section 723c. The reason for the rule rests in large part upon the fact that the trial judge who .hears the witnesses testify and observes their demeanor upon the stand is better qualified to appraise the credibility of their testimony ■and to resolve the conflicts therein. So long, therefore, as a finding of fact is supported by evidence and is not clearly erroneous, it is to be .accepted on appeal as verity.
“The rule does not operate, however, to entrench with like finality the inferences or conclusions drawn by the trial court from its fact findings. And so, while accepting the facts competently found by the trial court as correct, an appellate court remains free to draw the ultimate inferences and conclusions which, in its opinion, the findings reasonably induce. * * * Where the eviden-tiary facts are not in conflict or dispute, the conclusions to be drawn therefrom are for the appellate court upon review of the trial court’s action.”
“The findings of the District Judge in this regard are in effect findings as to the effect of these transactions rather than findings which resolve disputed facts. Hence we do not find ourselves obstructed by the traditional rule not to disturb findings of fact of the trial court. We are therefore free to make our own determination as to the legal conclusion to be drawn.” Brown v. Cowden Livestock Co., 9 Cir., 187 F.2d 1015, 1018 . (Emphasis supplied.)
“Appellees argue that we are bound by the foregoing findings, since the record does not show that they are clearly erroneous. We do not think so. When a finding is essentially one dealing with the effect of certain * * * events, rather than a finding which resolves disputed facts, an appellate court is not bound by the rule that findings shall not be set aside, unless clearly erroneous, but is free to draw its own conclusions.” Stevenot v. Norberg, 9 Cir., 210 F.2d 615, 619 . (Emphasis supplied.)
“[If] all subsidiary facts have been already found, or stand admitted, there can be no need of sending the case back. Our acceptance of the assessor’s special findings here gives us a record free of dispute except as to the ultimate factual inference to be drawn, and hence leaves us as fully able to draw it as would be the trial court. The test for reversibility does not require us to return the case for a new finding.” Texas Company v. R. O’Brien & Co., 1 Cir., 242 F.2d 526, 529 .
To me, the undisputed facts clearly show that the death of Mr. Holland arose out of, and in the course of his employment. Were there any doubt, the statutory presumption would resolve it in favor of the widow and children. Since there have been findings by the Deputy Commissioner as to the basic facts — that Mr. Holland was working as an employee of appellant at the time of his death and that he met his death as a result of falling between appellant’s barges while engaged in inspecting them — there remains for determination only the effect of such findings — whether his death arose out of, and in the course of his employment — and this court is free to make its own determination as to this legal conclusion. Since, in my opinion, it clearly appears that Mr. Holland’s death did arise out of, and in the course of his employment, I am of the view that instead of remanding the case to the Deputy Commissioner for a determination of this issue, we should, in effect, make that determination here, and, accordingly, affirm the judgment of the district court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446170. Public record. Not legal advice.