# Brief in Opposition — Pawnee Indian Tribe v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0313%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition - **Published:** January 1, 1962 - **Citation:** 370 U.S. 918 ## Text Office Supreme Court, U.S. , TOO ARY f I L J D me | py me ct MAY 28 1962 ae a — F. DAVIS, CLERK Supreme Court of the United States: 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 °o LEO M. ALPERT Attorney for Respondents 1112 Biscayne Building Biiaeam: 99 BMlawdAa iN I. il. The Questions Point III INDEX o~@ Reasons for Granting the Writ Point I Point Il Point IV Point V Conclusion Appendix Stipulation of Facts App. 1 CASES CITED ' Brown-Pacific-Maxon, Inc. v. Pillsbury, 132.F.S. 421 (D.C. Calif. $.D. 1953» Hastorf-Nettles, Inc. v. Pillsbury, 203 F2d 641 (C.A. 9th 1953) Lamm v. Silver Falls Timber Co., _ 286 Pac. 527 (Ore. 1930) Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N.Y. 461, 108 N.E.2d 609 (1952) Liberty Mutual Ins. Co. v. Gray, 137 F2d 926 (C.A. 9th 1943) C. ¥. Lytle Co. v. Whipple, 156 F2d 156 (C.A. 9th 1944). John W. McGrath Corp. v. Hughes, 264 F2d 314 (C.A. 2d 1959) O'Leary v. Brown-Pacific-Maxon, Inc., 340-U.S, 504, 71.8. Ct. 470, 96 L-Ed, 483° Turner v. Willard, 154 F.S. 352 (D.C.N.Y. S.D. 1956) 11 | Supreme Court of the United States | 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 a THE QUESTIONS In this case there are no special nor important nor substantia! reasons for certiorasy. Petitioner asseverates there are, however, and pro- poses three strawmen in h. ‘Questions Presented”. We cannot agree that those straw questions are the questions in this case. "4 w 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 Ceurt below a&.the controlling ques- tion in this case (see our Brief tele at page 13): _ “The question at bar is whether an 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 (ie. ‘ndét 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. 9902/2) |” Or, if a different formulatian 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 prqhibited from using jeep for recreation purpuses,\death of operator while re- turning in jeep 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 sey., 33 U.S.C.A. Sec. 901 et seq.; 42 USCA. Sec. 1651 et seq.” ae The third question put by Petitioner is not only, a distortion and omission but a peculiar turnabout. 6 aaa For it was the Petitioner who argued to the Court low that the Administrative Procedure Act had nothing ~ to do with this case at all; that the Deputy Commissioner's inferences are: “unreviewable” 1Gondeck Brief below, . page 13), “are not judicially reviewable” (ibid); ete. 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: — ye “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 ofan 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 US.- 504, 71 S.4't. 740, 95 L. Ed. 483; Universal Cam- era Corp. v: National Labor Relations Board, "340 U.S. 474, 71 5. 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., 38 U.S.C.A. Sec. 901 et ‘seq. ; Administrative Procedure Act, Secs. 1-12, 5: U.S.C.A. Sec. 1001- 1011.” i P i ll 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 be 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 no conflict’ and in our Brief below we challenged Petitioner then to.submit a reported féderal case holding compensable . ansinjury suffered while engaged in private (i.e., non- employer sponsored or aided) recreational activity. There "isn’t any. In truth the only. reported federal decision .on point is squarely with us: Brown-Pacific-Maxon, Inc.’ y. Pes, i” FS. 421 (D.C. Calif. — 1953).: Attached to that second reason is another: that the ” 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. The Court did not so require. Instead what the Court was talking about was that factor together with’ other favtors. This will more plainly appear later and is envious 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 Aymeals for . the ‘Fifth Circuit “has penalized the. widow and minor child of a deceased defense base worker for the violation of a co pany “rule by another worker without the de- . cedent’s fault”. Again that is not the holding below nor _ the facts in this case. The its iia below is that: nd ess We'do 1 not think it can be guid 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 » 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 misa»prehended 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. 4 It cannot be too strongly emphasizéd 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 ot judicial _ review is just talk. ; We will go into this more when we treat the par- ticular points that the Petitioner makes. oe 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-Pacifice-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 mucli surprised wien on her return heme she finds that the children have _ into the pooi and drowned. The other cases cited by Petitioner are all cases deal- ing with injuries that occurred while the employee was using employer providéd or sponsored recreational facili- ties or employer provided or sponsored transportation. We. quarrel with none‘of them. They are er to the case at har. ‘ - Taking the cases one by one as they are cited by the Petitioner: 5 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 a when he was killed and the Court: cited the next —fellowing case, Liberty Mutual Ins. Co. 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 v. Willard involved an injured claimant ~ _ who was a captain of one of the bowling leagues organized by and sponsered 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 Fails Timber Co., which involved a logger who had finished his: recreation and was on the defendant's. logging railroad going i) 15 ; it conceived that under the Act it had authority to reweigh the evidence. * * * ° this is another of the ii ei paid to the Fifth” Circuit by the Petitioner. The Court had no sifch ides. 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, due to the stipulated facts in this case. _ the question essentially was sheerly one of Jaw and on that question the Fifth Circuit Court of Appeals property ‘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 ae the activity in which the’ decedent-was en: gaged was related to his employment. He was «t the time engaged i ina private — not employer sponsored and not employer aided — recreational trip of his own which wag purely personal to him and the risks that he incurred were again purely personal to him and not arising out of the employment.- fa J “>” 2 ° 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 fingfng was not only un-. ‘ ~ supported by substantial evidence on,the record: considered as a whéle but there was no. evidence to support it. And, — * more significantly, : ‘the uestion, essentially, was one of ‘law’ which again had oily one answer. @ ¢ We rere $2 respectfully subfit 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 132. FS. 421 (D.C. Cauf: 5.-D. 1953) in which virtually the same fact situation was held. by the District Judge to , reat in non-compensability. / _ Respectfully sibanttted, . this Sencca of May, 1962. | ‘? , | ~ : | | = , @-.. ||. LEO M. ALPERT , ~ "1112 Biscayne Building We ee, Miami 82, Florida. | Attorney for Respondents . ee "3 - Court. decision in ‘Brown-Pacific-Maxon, Inc. v. Pillsbury, - . ; a? iS -~. 17 -€ERTIFICATE. 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, £962. LBO- M. ALPERT ‘ 1112 Biscayne Building’ ae Ee Miami 32, Florida | atoning 4 for Respondents | no a i. J App. 1 ° APPENDIX Rou (This Stipulation of Pacts may be found | in the ° eee of Record at p. 7-13) - . ‘STIPULATION OF FACTS : 1. Pan American World “Airways, lne.; 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. 2. 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 ahd receive another seven-day leave, as before. The same proceduré 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 30% bonus for working overseas, and periodic raises were con- templated in the Subare. 3. FRANK J. GONDECK’S duties were to operate the diesel engines generating electricity in the power- , App. : heuse. He worked eight (8) hours, then was off twenty- four (24) hours, but was sub§ect to call in the event of an emergency. His salary was $513.00 a month, which in- .,. cluded a 30‘c overseas bonus. 4. .The employer furnished transportation. from and | to Patrick Air Force Base, housing facilities, board and — laundry, and tepnepertatien on the Island. — : - “> Such transportation as might bé needed on the - Island was supplied by a Pan American motor bus op--* erated by a.Pan American bus driver ona 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 — ail on * the ee a - At the Base there was also a recreation center for the hee known as the “Reef Club”. (On vomeans “A”, this j is — the “Subsistence Building’’). 8. ‘The t town is Cockburt 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 1 in going back and forth to some. of the more re- - _ . AS . App. 3 mote diesel éperations’ (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, ai karts ee 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 offi¢ial business. IL 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, 2, 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 tien 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 quarter's when informed about the wreck. If produced as a witness, he would further state that he did not know that the men > App. 4 : e anes 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 fromthe 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 wheel 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 hour., The jeep is checked out permanently to the powerhouse and it is used by the pérsonnel of the powerhouse to change 7 watches at the three different powerhouses. The — ae ‘> ¢2jeep was being used at the time of che accident ) for personal use. Before leaving the Base, we had-been-drinking, but not to excess» fam 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 t | 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 was a bad front end.” . : 13. Fox F. Fr civilian powerhouse ‘operator, if produced as a witness, would testify as follows: “I was involved.in an accident with a ', ton jeep near the entrance to the Base. I was atthe Base Club at about 1700 hours, had a beer, went.to the mess hal, 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 thé 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 nat.ve village located about three miles from the Base. We spent about fifteen minutes 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 A we App. 6 - oa . powerhouse and informed the operator of the accident. Then I passed out. I have no EA ' of the reason the native was riding in the jeep. All of the U. S. occupants of the jeep had been _ drinking, but ‘hot to excess.” 14. Attached is a sketch, Exhibit “B”, showing where the vehicle overturned. PAA Investigator, L. E. — Bail, if produced as a witness, would testify that he éxamined the road at the sceng 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 aftér 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 _. 15. “The accident a 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: - sLightbourne t» Nassau, Bahamas,. and Gondeck and tlie 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 A , “oo” 2 eh J / A / 16. At the time ‘of 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:) Leo M: Alpert =~: (Sgd.)_ , Thomas _G. ‘Spicer ; LEO M. ALPERT . / THOMAS~G. SPICER Attorney for Employer. _ ~~ Attorney for Claimant, and Garrier, — ' Mrs. Jeanette E. Gondeck Pan-American World Air- 819 Seybold Building - ways, Inc., and Travelers’ * Miami 32, Florida Insurance Company | 1112 Biscayne Building. - Miami 32, Florida ie --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0313%3A4. Public record. Not legal advice.