Britton v. Great American Indemnity Co.

D.C. Circuit

Britton v. Great American Indemnity Co.

290 F.2d 381, 110 U.S. App. D.C. 190

CourtCourt of Appeals for the D.C. Circuit

DecidedMay 4, 1961

DocketNo. 16120

StatusPublished

Cited by7 cases

This text of 290 F.2d 381 (Britton v. Great American Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Britton v. Great American Indemnity Co., 290 F.2d 381, 110 U.S. App. D.C. 190 (D.C. Cir. 1961).

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Opinions

BAZELON, Circuit Judge.

An employer and its insurance carrier brought this suit against the Deputy Commissioner to set aside a compensation order directing payment of benefits to the dependents of two musicians fatally wounded by two disgruntled customers, who returned to the employer’s premises after having been ejected. The amended complaint challenged only three of the defendant’s findings: (1) that the deceased persons were employees and not independent contractors, (2) that the mother of one of the deceased was a dependent, and (3) that the award is based upon a properly determined wage rate.

[382]*382These findings were sustained by the District Court at the hearing on defendant’s motion for summary judgment. However, the court, sua sponte, noted an additional finding which it set aside— namely, that the homicides arose out of and in the course of employment. The defendant strenuously objected to this action on the ground that the issue was not urged either in the administrative proceeding or in the present complaint. In overruling this objection, the court stated orally that it would consider any issue upon which “there is evidence in the record.” The court thereupon treated plaintiffs’ memorandum in opposition to defendant’s motion for summary judgment as a cross motion, and granted summary judgment in favor of plaintiffs. This appeal followed.

We agree with the District Court that the record supports the findings of the Deputy Commissioner challenged in the complaint. But we think that the court erred in considering the issue which it raised, sua sponte.

In the formal pleadings and pre-hear-ing procedures before the Deputy Commissioner, the employer and its carrier denied, inter alia, the allegation that the of employment. But at the hearing, in response to the Deputy Commissioner’s effort to fix the issues for contest, counsel homicides arose out of and in the course specifically limited its denials to the allegations of employer-employee relationship, wages and dependency.¹ Thus the claimants were entitled to believe, as the Deputy Commissioner asserts they did, that the employer and its carrier had withdrawn their denial of the allegation now in question. The District Court read some of the evidence thereafter adduced at the hearing as disproving that allegation. It may not be assumed, however, that the claimants would have been unable to present countervailing evidence even if they had not been led to believe that the issues had been withdrawn. Maryland Casualty Co. v. Cardillo, 1939, 71 App.D.C. 160, 107 F.2d 959; Metropolitan Casualty Ins. Co. v. Hoage, 1937, 67 App.D.C. 54, 89 F.2d 798.

In concluding that the employer and its carrier withdrew their pre-hearing denial of the allegation that the homicides arose out of and in the course of employment, we are fortified by the failure of their complaint herein to challenge the action of the Deputy Commissioner in sustaining that allegation.

Reversed and remanded for further proceedings in accordance with this opinion.

¹

. With respect to the issues in controversy on one of the claims herein, counsel for the insured and its carrier stated to the Deputy Gommissioner that

“There was no relationship of employer-employee before or at the time of the occurrence. We controvert the claim for earnings; we controvert the dependency claim of the mother; and we are controverting until shown any evidence, any medical expenses.

“Basically, without specifying it, we are resisting the claim in every particular except such particulars as we will later stipulate to, but generally, it is the contention of the respondents that there was no relationship of employer-employee at all insofar as the management of the Jo-Del Restaurant and the musi-eians were concerned and, of course, basically the dependency of the mother. * :J: * „

AVith respect to the other claim, counsel subsequently stated:

“The overall grounds of the controversy are that there was no employer-employee relationship. Specifically, we deny that relationship and we deny the claimed earnings. That is the extent of our denials in that case.”

Read as a whole, it is abundantly clear that at the hearing before the Deputy Commissioner counsel did not contest the allegation that the homicides arose out of and in the course of employment.

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BAZELON, Circuit Judge.

An employer and its insurance carrier brought this suit against the Deputy Commissioner to set aside a compensation order directing payment of benefits to the dependents of two musicians fatally wounded by two disgruntled customers, who returned to the employer’s premises after having been ejected. The amended complaint challenged only three of the defendant’s findings: (1) that the deceased persons were employees and not independent contractors, (2) that the mother of one of the deceased was a dependent, and (3) that the award is based upon a properly determined wage rate.

[382]*382These findings were sustained by the District Court at the hearing on defendant’s motion for summary judgment. However, the court, sua sponte, noted an additional finding which it set aside— namely, that the homicides arose out of and in the course of employment. The defendant strenuously objected to this action on the ground that the issue was not urged either in the administrative proceeding or in the present complaint. In overruling this objection, the court stated orally that it would consider any issue upon which “there is evidence in the record.” The court thereupon treated plaintiffs’ memorandum in opposition to defendant’s motion for summary judgment as a cross motion, and granted summary judgment in favor of plaintiffs. This appeal followed.

We agree with the District Court that the record supports the findings of the Deputy Commissioner challenged in the complaint. But we think that the court erred in considering the issue which it raised, sua sponte.

In the formal pleadings and pre-hear-ing procedures before the Deputy Commissioner, the employer and its carrier denied, inter alia, the allegation that the of employment. But at the hearing, in response to the Deputy Commissioner’s effort to fix the issues for contest, counsel homicides arose out of and in the course specifically limited its denials to the allegations of employer-employee relationship, wages and dependency.¹ Thus the claimants were entitled to believe, as the Deputy Commissioner asserts they did, that the employer and its carrier had withdrawn their denial of the allegation now in question. The District Court read some of the evidence thereafter adduced at the hearing as disproving that allegation. It may not be assumed, however, that the claimants would have been unable to present countervailing evidence even if they had not been led to believe that the issues had been withdrawn. Maryland Casualty Co. v. Cardillo, 1939, 71 App.D.C. 160, 107 F.2d 959; Metropolitan Casualty Ins. Co. v. Hoage, 1937, 67 App.D.C. 54, 89 F.2d 798.

In concluding that the employer and its carrier withdrew their pre-hearing denial of the allegation that the homicides arose out of and in the course of employment, we are fortified by the failure of their complaint herein to challenge the action of the Deputy Commissioner in sustaining that allegation.

Reversed and remanded for further proceedings in accordance with this opinion.

¹

. With respect to the issues in controversy on one of the claims herein, counsel for the insured and its carrier stated to the Deputy Gommissioner that

“There was no relationship of employer-employee before or at the time of the occurrence. We controvert the claim for earnings; we controvert the dependency claim of the mother; and we are controverting until shown any evidence, any medical expenses.

“Basically, without specifying it, we are resisting the claim in every particular except such particulars as we will later stipulate to, but generally, it is the contention of the respondents that there was no relationship of employer-employee at all insofar as the management of the Jo-Del Restaurant and the musi-eians were concerned and, of course, basically the dependency of the mother. * :J: * „

AVith respect to the other claim, counsel subsequently stated:

“The overall grounds of the controversy are that there was no employer-employee relationship. Specifically, we deny that relationship and we deny the claimed earnings. That is the extent of our denials in that case.”

Read as a whole, it is abundantly clear that at the hearing before the Deputy Commissioner counsel did not contest the allegation that the homicides arose out of and in the course of employment.

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290 F.2d 381, 110 U.S. App. D.C. 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britton-v-great-american-indemnity-co-cadc-1961.

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