Opposition Brief — Gondeck v. Pan American World Airways, Inc.

MAY 28 1962

JOHN F. DAVIS,

Supreme Court of the Unit

OCTOBER TERM, 1961

No. 919

JEANETTE E. GONDECK, Intervenor,

Petitioner,

vs.

PAN AMERICAN WORLD AIRWAYS,

INCORPORATED and

THE TRAVELERS INSURANCE COMPANY,

Respondents,

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

LEO M. ALPERT

Attorney for Respondents

1112 Biscayne Building

Miami 32, Florida

™ . . . veya mar FO LLL EES, iy, AEM a pe es

Irma ts: ex sibiaiaio nr

Fe NE cis cceseiintecansdonetinnndnsenimaictone e

II. Reasons for Granting the Writ. 4

SNE Mini alecdranacticeg heed aieedial cechisiinbasamnactagaes 7

se fe = 12

Te oaanee Fete og ee eral 13

ER aA ieee Seem vad Bim 13

Rs ee ee a 14

SEO ir SA RECL EY EAS MN ae 15

Appendix

PURI OE Ns ees eects cerns App. 1

zi

x

4

*

*

t

z

4

aR oh i aur

STN CENT ENE PRE NOM MLS LY LUI TIEN EAS RAR RAN RRP UR EIEN REY 2

PPI LF SAO OPE Nee raat 9 5

CASES CITED ~-

Page

Brown-Pacific-Maxon. Inc. v. Pillsbury,

132 F.S. 421 (D.C. Calif. S.D. 1953). 4,16

Hastorf-Nettles, Inc. v. Pillsbury,

DOB FOd G41 (CA. Sttn LOGS) nanan nn cen cnceseesnceneverne 8

Lamm v. Silver Falls Timber Co.,

Sy Prue, TE CC, TO naires 8

Lewis v. Knappen Tippetts Abbett Eng. Co.,

304 N.Y. 461, 108 N.E.2d 609 (1952)... 9

Liberty Mutual Ins. Co. v. Gray,

Soh, - Fit SG | ee eeeerne 8

C. V. Lytle Co. v. Whipple,

156 Fe 166 (CA. Sh 1)... 8

John W. McGrath Corp. v. Hughes,

O56 Fae 4 (CA. Oe ee) 11

O’Leary v. Brown-Pacific-Maxon, Inc.,

340 U.S. 504, 71 S. Ct. 470, 95 L.Ed. 483... 7

Turner v. Willard,

154 F.S. 352 (D.C.N.Y. 8.D. 1956).................. ieonoe! 8

Supreme Court of the United States i

OCTOBER TERM, 1961

No. 919

JEANETTE E. GONDECK, Intervenor,

Petitioner,

Vs.

PAN AMERICAN WORLD AIRWAYS,

INCORPORATED and

THE TRAVELERS INSURANCE COMPANY,

Respondents,

BRIEF'IN OPPOSITION TO

PETITION FOR CERTIORARI

I

THE QUESTIONS

In this case there are no special nor important nor

substantial reasons for certiorari.

Petitioner asseverates there are, however, and pro-

poses three strawmen in her “Questions Presented”. We

cannot agree that those straw questions are the questions

in this case,

2

The first two questions (which as put by Petitioner

are distortions and omissions) are comprehended, we Sug-

gest without partiality to either side, by this question

which we put to the Court below as the controlling ques-

tion in this case (see our Brief below at page 13):

“The question at bar is whether ai: employee

hired to work out of the United States on a Ba-

hama island who is injured (and dies) when a

jeep overturned in which he was a passenger

while away from the employer’s premises on a

private (i.e. not employer sponsored or aided)

recreational trip of his own has suffered an in-

jury ‘arising out of and in the course of employ-

ment’. [33 U.S.C.A. Sec. 902(2) |”

Or, if a different formulation be preferred, the ques-

tion might be phrased by putting the following West

Syllabus to this case in interrogative form: See 299 F.2d

at 74, Syllabus 5: .

“Where diesel generator operator at defense

base in British West Indies was subject to call

for emergencies when off duty, there was recrea-

tion center on base, employer transported em-

ployees without charge by bus to town and em-

ployees were prohibited from using jeep for

recreation purposes, death of operator while re-

turning in jeep from native club in town where

he had had a beer after working hours did not

arise out of or in the course of employment and

hence was not compensable. Longshoremen’s and

Harbor Workers’ Compensation Act, Sec. 1 et

3

seq., 33 U.S.C.A. Sec. 901 et seq.; 42 U.S.C.A.

Sec. 1651 et seq.”

The third question put by Petitioner is not only a

distortion and omission but a peculiar turnabout.

For it was the Petitioner who argued to the Court

below that the Administrative Procedure Act had nothing

to do with this case at all; that the Deputy Commissioner’s

inferences are: “unreviewable” (Gondeck Brief below,

page 13), “are not judicially reviewable” (ibid); etc. And

it was we who pointed out the law now stated by Peti-

tioner to be correct and applicable.

And so it was that the Court below said: See Opinion

at A. 7 of Petitioner’s Petition here:

“The Intervenor-Appellant asserts that ‘In the

absence of a finding that Gondeck was injured

and killed within the terms of Section 903(b),

the award must be reinstated.’ This is not an

accurate statement, at least since the passage of

the Administrative Procedure Act, of the princi-

ple governing a judicial review of an administra-

tive determination. The findings are to be ac-

cepted unless they are unsupported by substan-

tial evidence on the record considered as a whole.

O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S.

504, 71 S.Ct. 740, 95 L. Ed. 483; Universal Cam-

era Corp. v. National Labor Relations Board,

340 U.S. 474, 71 S. Ct. 456, 95 L.Ed. 456. ***”

And so it is that, and quite contrary to Petitioner’s

question, West Syllabus Note 4 reads:

—

4

“Deputy Commissioner’s findings, in compen-

sation case, are to be accepted unless they are un-

supported by substantial evidence on the rec-

ord considered as a whole. Longshoremen’s and

Harbor Workers’ Compensation Act, Sec. 1 et

seq., 33 U.S.C.A. Sec. 901 et seq.; Administrative

Procedure Act, Secs. 1-12, 5 U.S.C.A. Sec. 1001-

1011.”

Il

REASONS FOR GRANTING THE WRIT

The above is another of Petitioner’s captions.

The first reason advanced is “because the beneficial

provisions of the compensation laws were disregarded and

the intent of Congress misapprehended when it was held

that Frank J. Gondeck’s death was not a consequence of

his employment”. This of course is sheer ipse dixit and not

a reason but a conclusion. No more need he said on that.

The second reason advanced is that the Court of Ap

peals for the Fifth Circuit is in conflict with the opinions

of this Court and other Courts of Appeal. There is n0

conilict and in our Brief below we challenged Petitioner

then to submit a reported federal case holding compensable

an injsry suffered while engaged in private (i.e., not-

employer spensored or aided) recreational activity. There

isn’t any. In truth the only reported federal decision

point is squarely with us: Brown-Pacific-Maxon ‘.tc. '.

Pillsbury, 132 F.S. 421 (b.C. Calif. S.b 2242).

Attached to that second reason is another: that the

ee

Court of Appeals for the Fifth Circuit is holding that the

employer must receive some tangible benefit as contrasted

to improvement of work or moral. ‘he Court did not so

require. Instead what the Court was talking about was

that factor together with other factors. This will more

plainly appear later and is obvious from the face of the

opinion.

The third reason is that the Court of Appeals for the

Fifth Circuit “departed from the opinions of this court

and other courts of appeal by setting aside an award of

compensation for death suffered by defense base worker

while returning to base in a company vehicle”. That of

course is not the fact in this case. The fact in this case is

as the Court of Appeals stated:

“He had not been using recreational facilities

furnished by the employer nor did he use the

means of travel to and from the place of rec-

reation furnished by the employer.” (A. 8-9)

The fourth reason is that the Court of Appeals for

the Fifth Circuit “has penalized the widow and minor

child of a deceased defense base worker for the violation

of a company rule by another worker without the de-

cedent’s fault”. Again that is not the holding below nor

the facts in this case. The holding beiow is that:

“*** We do not think it can be said that the

employer sponsored the activity of going to Cock-

burn Town for recreation because it furnished

free bus service between the town and the base.

If such sponsorship could be inferred it would not

inhere in an expedition made in the employer’s

LEE Ee.

on rm —

6

jeep which the employees were prohibited from

using for such purposes. ***” (A. 8)

The fifth reason is that the Court of Appeals for the

Fifth Circuit “has misapprehended the scope of judicial

review permitted in the Administrative Procedure Act

and has expanded the judicial authority.” We have al-

ready pointed out that this represents a most peculiar

turnabout on the part of the Petitioner who argued be.

low that the Administrative Procedure Act had nothing

to do with this case at all, ete. Of course the Court did

not do what Petitioner says it did.

We note that the Petitioner has omitted as an ap

pendix the stipulated facts upon which the Deputy based

his Order.

We have therefore attached as an Appendix to this

Brief the Stipulation.

It cannot be too strongly emphasized in this connec-

tion that, as the Court of Appeals pointed out but did not

dwell particularly on, the evidentiary facts were stipu-

lated and it was the Deputy Commissioner’s inferences

and legal conclusions drawn from those facts that were

reviewed. When Petitioner states that the facts “... are

adequately summarized by the Court of Appeals, and the

Court’s statement from its opinion is accepted as the

statement of the case...” (Petition at p. 4) it becomes

apparent that we are dealing with questions of law and

the point about misapprehending the scope of judicial

review is just talk.

7

We will go into this more when we treat the par-

ticular points that the Petitioner makes.

POINT I

We are using Petitioner’s captions. Under this par-

ticular head the Petitioner makes the argument that

reasonable recreation is an incident of civilian employ-

ment at a United States Military Base in a foreign land,

citing the O'Leary v. Brown-Pacific-Maxon decision of

this Court and other decisions.

But O’Leary held only that the employer had made

reasonable recreation an incident of the employment at

the defense base and turned largely on the “zone of special

danger” that had been created or allowed to come to pass

by the employer in that case. O’Leary has always struck

us as being very much akin to a mother locking her chil-

dren in the back yard where there is a swimming pool,

telling the children not to go in, then going downtown

shopping, and being much surprised when on her return

home she finds that the children have gone into the pool

and drowned.

The other cases cited by Petitioner are all cases deal-

ing with injuries that occurred while the employee was

using employer provided or sponsored recreational facili-

ties or employer provided or sponsored transportation. We

quarrel with none of them. They are inapplicable to the

case at bar.

Taking the cases one by one as they are cited by the

Petitioner:

RR 2 SAYRE SR ANY eS RE OT OD MR PREY OL AS EIN nee BiH OF pene Me yen Ot MER GF

ON XG

ey

i]

| ie LGR RE MRE MR re mee «

ie

In Hastorf-Nettles, the employee was returning

to camp in the employer provided truck when the

accident occurred in which he was injured.

In the Lytle Co. v. Whipple case the employee was

returning to his barracks in the company truck

when he was killed and the Court cited the next

following case, Liberty Mutual Ins. Ce. v. Gray

in support of its holding. We have no quarrel

with any of these cases.

In Liberty Mutual Ins. Co. v. Gray, compensation

liability had attached with the employer provided

transportation: the employee was on his way

back to his construction camp on Oahu in a truck

provided by the employer to transport employees

from Honolulu to the camp.

Turner vy. Willard z.ivolved an injured claimant

who was a captain of one of the bowling leagues

organized by and sponsored by the employer. |

He was on bowling league business.

Travelers Insurance Company v. O’Hearn is an

unreported case. We consider the citation of an

unreported case to be entirely improper because

there obviously is no report to examine. The

same comment is applicable to the other Trav-

elers Insurance Company v. O’Hearn case.

The State cases that are cited by Petitioner are:

Lamm v. Silver Falls Timber Co., which involved

a logger who had finished his recreation and

was on the defendant’s logging railroad going

9

back to camp—the transportation being fur-

nished by the employer—when the accident oc-

curred. We have no quarrel with this case nor

with any of these cases which hold as the rule

that when an employer provides transportation

the compensation liability commences with the

transportation.

The Gabumas case and the Lewis case are both

unusual cases entirely apart from the case at

bar which might best be summed up by what

the New York Court of Appeals said in Lewis:

“* * * Here Lewis was sent by his employer to

a country where there had been warfare for a

long time and where an uneasy truce was in

effect.”

In fact, if Larson on Workmen’s Compensation will

be examined at Sec. 25.00 et seq. a number of traveling

employee cases will be found with various and sundry

ratio decidendi. Some of these New York cases might be

considered to award compensation because of the “strange

customs” and “abnormal conditions” of travel in a foreign

land but it is obvious they have no light to shed on our

case.

Petitioner suggests at page 7 of her Brief that “In

analogous situations, such as actions for seamen’s mainte-

nance and cure, injuries suffered during shore leave have

been held by this Court to be within the scope of employ-

ment.”

That statement and citation of two Jones Act cases

10

dealing with maintenance and cure surprise us, as well

as the suggestion that the Jones Act situations are

“analogous”. Maintenance and cure has certain limita-

tions not applicable to Workmen’s Compensation—as for

example the fact that maintenance and cure is not paid

throughout a “permanent and total disability”—and again

maintenance and cure in itself is an old maritime doctrine.

For the suggestion to be made that situations are

analogous that date back to the “Laws of Oleron” and the

saga of the seas and the doctrine of seamen being wards,

is demonstration of an in extremis argument.

Congress could have so provided but in fact Congress

did not. The Federal Longshoremen’s and Harbor

Workers’ Act is a complete and well thought out entity

in and of itself providing for compensation under specific

and particular conditions. The Federal Longshoremen’s

and Harbor Workers’ Act was made applicable to defense

bases and to the employment in the case at bar by the

Defense Bases Compensation Act, 42 U.S.C. Sec. 1651 et

seq. Had Congress wished a wider coverage to be given

under the Act to employees at defense bases, had Con-

gress considered, as the Petitioner would have this Court

believe, that it “intended” a wider coverage, then of course

Congress could have provided the wider coverage but Con-

gress did not.

For example, Congress provided the wider coverage

under the Federal Employees Compensation Act—5 U.S.C.

Sec. 51 et seq.—by saying in 42 U.S.C. Sec. 1701 “and such

injury proximately results from a war risk hazard,

whether or not such person in actuality was engaged in

the course of his employment”. Congress again widened

11

the coverage in this very Defense Bases Compensation

Act with respect to injuries received during transporta-

tion to and from the place of employment by saying in

42 U.S.C. See 1651(a)(4) that coverage “shall include any

injury or death occurring to any such employee during

the transportation to and from his place of empluyment,

where the employer or the United States provides the

transportation or the cost thereof”.

The fact is therefore that Congress did not in its

Defense Bases Compensation Act broaden the scope of the

coverage of the Federal Longshoremen’s and Harbor

Workers’ Act except in the one particular just above

noted.

Petitioner then contends that the Fifth Circuit is in

conflict with Q’Leary because the Fifth Circuit said, inter

alia, that no benefit to the employer had been shown.

If, however, the opinion of the Fifth Circuit wili be

read it will be found that the Court was saying that no

matter how hard it looked it could not find any evidence

to furnish a link “by which the activity in which Gondeck

was engaged was related to his employment”. The Court

was not laying down a rule that there must be benefit to

the employer; the Court was trying to find if there was

any possible link between the employment and the injury.

Petitioner then argues that there is a presumption

of coverage. Of course a presumption of coverage does

not have the quality of independent affirmative evidence

—see John W. McGrath Corp. v. Hughes, 264 F.2d 314

(C,A.2d 1959) and this is merely a makeweight.

12

We have no argument whatever with the espousal

by the Petitioner of the doctrine of liberal interpretation

of the Federal Longshoremen’s and Harbor Workers’ Com-

pensation Act. We agree that that Act is to be liberally

construed in favor of the emplovee. To go from the doc-

trine of liberal construction, however, to the abolition

of there being a link between the employment and the

injury is stretching the elasticity of interpretation beyond

the breaking point.

POINT Ii

Under this head the Petitioner states that the “Dep-

uty Commissioner properly rejected outmoded ccmmon

law conceptions of scope of employment and held the de-

cedent was injured within a zone of special danger”.

Unfortunately for Petitioner’s contention, there were

no such findings by the Deputy. The Deputy did not say

that he was rejecting outmoded common law conceptions

nor did he hold that decedent was irjured within a zone

of special danger. The Deputy’s opinion may be read from

beginning to end without finding any such conclusion as

this.

We agree of course that under the Federal Longshcre-

men’s and Harbor Workers’ Compensation Act a common

law conception of scope of employment is not applicable.

The requirement under the Act is that the injury must be

one “arising out of and in the course of employment”. The

Fifth Circuit did not go off into what Petitioner says.

What the Fifth Circuit did was to say that it could find

no “link by which the activity in which Gondeck was en-

gaged was related to his employment”. That is no common

13

law conception but rather straightforward application of

modern compensation law.

The assertion by the Petitioner that: “The doctrin:

of ‘zone of special danger’ has been discarded by the Fifth

Circuit” is of a piece with the other stretchers made by

Petitioner. There just wasn’t any ‘zone of special danger’.

POINT ITI

Under this head are the arguments previously made

by the Petitioner with, however, the assertion that had

Gondeck gone in to town by bus and hitched a ride back

he would have been covered. That is not what the Fifth

Circuit said ner is it correct. In addition, Petitioner makes

the following statement which has no support whatever

in any part of the Record and the source of which is a

mystery to us: “The company rules permit employees to

hitch back from town.” We know of ao rule, we know

of no issue in connection with such an assertion, there is

no such factor in this case.

POINT IV

Under this head the argument is made that the

Deputy properly refused to penaiize the Claimant for

violation of a non-communicated unenforced company

rule. This contention, repeated a number of times, is

entirely beside the point in this case.

As was said in cur Brief below, the District Court

did not reverse the Deputy on the ground that the de-

cedent was violating company regulations by using the

jeep—and we have no quarrel with the rule stated by

~ gee a ae ame ee md OT tae

pia em ae TS a ?

*

14

the Petitioner that employees should not and must not be

denied compensation fer violation of uncommunicated un-

enforced company ruies—and the fact is that we have said

this repeatedly and over and over again—and the fact is

that Petitioner continues to make the same argument over

and over again.

What happened was that the District Judge stated

that the recreational trip could hardly be said to be em-

ployer sponsored or employer approved or arising out of

or in the course of employment when the jeep itself was

not permitted to be so used. And that is as far as this

matter went. It did not go to the point of denying com-

pensation because of violation of company rules.

Nor did the Fifth Circuit do what Petitioner claims

it did. All that the Fifth Circuit said was that it did iiot

think it could be said that the employer sponsored the

activity of going to Cockburn Town for recreation because

it furnished free bus service between the town and the

base; and that if such sponsorship could be inferred, it

would not inhere in an expedition made in the employer's

jeep which the employees were prchibited from using for

such purpose. The West syllabi are vroof enough of what

the Court said as contrasted to what Petitioner says it

said.

PCINT V

When Petitioner under this head states:

“Presumably, the Court of Appeals would have

reinstated the compensation award except that

15

it conceived that under the Act it had authority

to reweigh the evidence. * * * ”

this is another of the sheer gratuities paid to the Fifth

Circuit by the Petitioner. The Court had no such idea.

The Court did no such thing. The Court did not, as Peti-

tioner claims it did, widen the scope of judicial review.

It is an odd turnabout as we have previously noted;

and the facts were all stipulated; but more significantly

what sense is there to a contention about reweighing evi-

dence when Petitioner concedes that the facts in this

case “ ... are adequately summarized by the Court of

Appeals and the Court’s statement from its opinion is

accepted as the statement of the case...” (Petition at

p. 4)

CONCLUSION

Actually, dve to the stipulated facts in this case,

the question essentially was sheerly one of law and on that

question the Fiftn Circuit Court of Appeals properly

ruled, under the stipulated facts, that the injury and

death of Gondeck were wholly disassociated from his em-

ployment and that there was no evidence to furnish a

link by which the activity in which the decedent was en-

gaged was related to his employment. He was at the

time engaged in a private — not employer sponsored and

not employer aided — recreational trip of his own which

was purely personal to him and the risks that he incurred

were again purely personal to him and not arising out of

the employment.

16

The issue in these cases is “Is the risk personal or

employment related?” That is what was decided here, on

stipulated facts. The Deputy’s finding was not only un-

supported by substantial evidence on the record considered

as a whole but there was no evidence to support it. And,

more significantly, the question, essentially, was one of

law which again had only one answer.

We therefore respectfully submit that in this case

there is no important, special, or substantial reason for

certiorari.

We might observe that the only reported federal de-

cision dealing with this specific situation is a District

Court decision in Brown-Pacific-Maxon, Inc. v. Pillsbury,

132 F.S. 421 (D.C. Calif. S. D. 1953) in which virtually

the same fact situation was held by the District Judge to

result in non-compensability.

Respectfully submitted, this

____day of May, 1962.

LEO M. ALPERT

1112 Biscayne Building

Miami 32, Florida

Attorney for Respondents

17

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief

in Opposition to Petition for Certiorari were mailed to

Arthur Roth, Esq., 1111 Ainsley Building, Miami 32,

Florida, and Norman Miller, Esq., 20 S. E. First Avenue,

Miami 32, Florida, this _____ day of May, 1962.

LEO M. ALPERT

1112 Biscayne Building

Miami 32, Florida

a Attorney for Respondents

PERE SEARED FE = Soe NAAT

Rete sepals et NTSB

EES

APPENDIX

(This Stipulation of Facts may be found in the

Transcript of Record at p. 7-13)

STIPULATION OF FACTS

1. Pan American World Airways, Inc., contracted

with the United States Government to staff the non-mili-

tary portions of certain of the United States Guided

Missile Tracking Bases with civilian employees.

9 The deceased, FRANK J. GONDECK, a resident

of Florida, was employed by Pan American World Air-

ways, Inc., in March, 1958, to work on San Salvador Is-

land, B.W.L, as a diesel generator operator. The terms of

his employment required him to report to Patrick Air

Force Base, near Cocoa, Florida, and be transported by

air, at his employer’s expense, to San Salvador Island,

B.W.L, where he was to remain for forty-five (45) days.

He was then to be returned to Patrick Air Force Base,

at the expense of his employer, and receive a seven-day

leave. Thereafter, he was again to report to Patrick Air

Force Base, be transported to San Salvador Island to

work another forty-five (45) days and receive another

seven-day leave, as before. The same procedure was to be

followed thereafter, except that the work periods were

to be for three (3) months and the leave periods to be

fourteen (14) days. His remuneration included a 307%

bonus for working overseas, and periodic raises were con-

templated in the future.

3. FRANK J. GONDECK’S duties were to operate

the diesel engines generating electricity in the power-

App. 2

house. He worked eight (8) hours, then was off twenty-

four (24) hours, but was subject to call in the event of an

emergency. His salary was $513.00 a month, which in-

cluded a 29% overseas bonus.

4. The employer furnished transportation from and

to Patrick Air Force Base, housing facilities, board and

laundry, and transportation on the Island.

5. Such transportatior: as might be needed on the

Island was supplied by a Pan American motor bus op-

erated by a Pan American bus driver on a regular sched-

ule from the Base to the town, at no charge.

6. The housing facilities consisted of a room in a

dormitory, each room being occupied by four men, the

dormitory being approximately 100 feet long and facing

the Atlantic Ocean, as shown on the sketch attached here-

to as Exhibit “A”, the dormitories being marked “5” on

the Exhibit.

7. At the Base there was also a recreation center for

the employees known as the “Reef Club”. (On Exhibit

“A”, this is labeled the “Subsistence Building’’).

8. The town is Cockburn Town, which has native

clubs in a section known as Victoria Hills, where PAA

men were commonly known to go for beer. One of the na-

tive clubs is the “Blue Marlin Club”. Cockburn Town is

predominantly Negro, there being very few White people

on San Salvador.

‘ 9. Pan American, for the use of powerhouse em-

ployees ‘ir: going back and forth to some of the more re-

App. 3

mote diesel operations (the powerhouse on the Base is

only one of several diesel operated electric generating

plants), has one jeep. The use of this jeep for personal

missions by employees is forbidden by Pan American.

The jeep in question was assigned to the powerhouse and

was checked out to Mr. E. Wells, powerhouse superviser,

on a daily basis.

10. The powerhouse superviser, Mr. E. Wells, some

three or four days prior to April 24, 1958, had warned

Smith and Norman, two of the powerhouse employees,

that the powerhouse jeep was not to be used for anything

except official business.

11. On April 24, 1958, FRANK J. GONDECK re-

ported for work as usual at 0800, worked his regular

eight-hour shift, and went off duty at 1600 hours. He,

together with some other employees, went to the “Reef

Club”, and there about eight or nine of the civilian em-

ployees sat around drinking champagne. The employees

drinking were, specifically, Fox F. Fry, Frank Gondeck,

James F. Norman, and R. M. Smith. The Superviser,

Wells, was asked by Fry to join them and have a glass of

champagne, which he did. Wells then went to the mess

hall, had dinner, then went to his quarters and cleaned up.

About 1730 hours he started to a movie on the Base and

stopped by the “Reef Club” to have a beer. At that time,

the same men were there sitting at the same tables drink-

ing. Wells had a beer and then started for the movie. He

went to the movie but did not stay long, left the movie

and returned to his quarters. He was in his quarters when

infarmed about the wreck. If produced as a witness, he

would further state that he did not know that the men

App. 4

were going to use the jeep and that no permission had

been given to them to use the jeep.

12. James F. Norman, civilian powerhouse operator,

if produced as a witness, would testify as follows:

“On 24 April 1958, I used the powerhouse jeep,

and accompanied by Fry, Smith, and Gondeck,

other powerhouse operator, proceeded to a na-

tive village about three miles from the Base. We

stopped at a local beer place and ordered one

beer. We spent about fifteen minutes at this

beer place. At this time we proceeded toward

San Salvador AFB. The native at the beer

place asked us for a ride (I do not know his

name). The native said that he worked at the

Base. He then got into the jeep. As we ap-

proached the Base, I believe the wheels hit a

hole in the road and caused the whee! to jerk

to the left. I then jerked them to the right and

this caused the jeep to skid, and I was thrown

out of the jeep. I judge the speed of the jeep

was about 30 miles per hcur. The jeep is checked

out permanently to the powerhouse and it is used

by the personnel of the powerhouse to change

watches at the three different powerhouses. The

jeep was being sed at the time of the accident

for personal use. Before leaving the Base, we

had been drinking, but not to excess. I am fa-

miliar with instructions that natives are not al-

lowed to ride in PAA vehicles if they are not

employed at the Base. After Smith verified the

native’s being employed at the Base, he was al-

lowed to ride in the jeep. I cannot explain what

App. 5

caused the jeep to go into the skid, as it hap-

pened so fast and I know the front end of the

jeep has been bad for a long time. The Base

maintenance section knows the jeep had a bad

front end.”

13. Fox F. Fry, civilian powerhouse operator, if

produced as a witness, would testify as follows:

“IT was involved in an accident with a +4 ton jeep

near the entrance to the Base. I was at the Base

Club at about 1700 hours, had a beer, went to the

mess hall, had chow, and talked with other

powerhouse operators until time for the mess

hall to be closed. I then went back into the Club

where I had some more beer, continued talking

to the others. Meanwhile, we left the Club, con-

tinued talking, and proceeded to the main power-

house. About 1930 hours, Smith, Gondeck, my-

self, and Norman, driving, took the PAA 4 ton

jeep assigned to the powerhouse, proceeded to a

native village located about three miles from the

Base. We spent about fifteen minztes having

a beer at a native beer place. We left the beer

place to return to the Base. The native (I do

not know his name) came out of the beer place

with Smith and loaded into the jeep. After

leaving the beer place with Norman driving,

we proceeded toward the Base, at a rate of about

30 or 35 miles per hour. Just before reaching

the entrance gate, the jeep seemed to go to the

left and then skid to the right. I remember the

chrome from the jeep being thrown from the

jeep. I got up in a daze and walked to the

eT

App. 6

powerhouse and informed the operator of the

accident. Then I passed out. I have no knowledge

of the reason the native was riding in the jeep.

All of the U. S. occupants of thé jeep had been

drinking, but not to excess.”

14. Aitached is a sketch, Exhibit “B”, showing

where the vehicle overturned. PAA investigator, L. E.

Bail, if produced as a witness, would testify that he

examined the road at the scene of the accident on April

28, 1958, after ascertaining that there had been no changes

in the highway since the accident of April 24th, and found

that the vehicle was traveling Southwest and when at a

point 147 feet Northeast of the gate, the vehicle went

into a skid which lasted for 82 feet, 9 inches, to the point

of overturn; the skid marks and dragging after the

overturn indicated that the vehicle turned over one and

one-half times and came to rest on its left side, 65 feet

from the point of the original overturn; the physical

evidence indicated continuous acceleration while the jeep

was in the skid.

15. The accident occurred at approximately 2005

hours. R. M. Smith was dead when help arrived at the

scene. Gondeck, Norman, Fry, and the native, R. Light-

bourne, were flown from the Base for medical attention;

Lightbourne to Nassau, Bahamas, and Gondeck and the

others first to Patrick Air Force Base, then to Orlando,

Florida, where, on April 27, 1958, Gondeck died of the in-

juries he had suffered in the overturn, as per a certified

copy of the Death Certificate attached hereto as Exhibit

=".

16. At the time cf his death, Gondeck left surviving

App. 7

and dependent upon him a widow, Jeanette E. Gondeck,

and a daughter, Barbara Ann Gondeck. The daughter’s

birthdate is August 29, 1940.

Respectfully submitted,

(Sgd.) ‘eo M. Alpert (Sgd.) Thomas G. Spicer

LEO M. ALPERT THOMAS G. SPICER

Attorney for Employer Attorney for Claimant,

and Carrier, Mrs. Jeanette E. Gondeck

Pan American Worid Air- &19 Sevbold Building

ways, Inc., and Travelers Miami 32, Florida

Insurance Company

1112 Biscayne Building

Miami 32, Florida