Matter of Kilgus v. Bd. of Estimate of City of Ny

127 N.E.2d 705, 308 N.Y. 620, 1955 N.Y. LEXIS 968

Opinions

Conway, Ch. J.

John Kilgus, deceased husband of petitioner, had been employed by the board of transportation of the City of New York as a car maintainer, and was a member of the city’s employees’ retirement system. On July 9, 1946, the decedent was assigned to duty at the subway yards at Tenth Avenue and 211th Street in New York City. His tour was to run from 1:00 a.m. to 9:00 a.m. At about 6:00 a.m., he was found lying against a live third rail in those yards, and died thereafter, as the result of injuries caused by the electricity.

The petitioner widow filed a claim for accidental death benefits pursuant to section B3-33.0 of the Administrative Code of the City of New York, the applicable part of which reads as follows: "‘Death benefits; accidental death benefits.— Upon the acci dental death of a member before retirement, provided that evidence shall he submitted to such hoard proving that the death of such member was the natural and proximate result of an accident sustained while a member and while in the performance of duty at some definite time and place and that such death was not the result of wilful negligence on his part, his accumulated deductions shall be paid to his estate, or to such persons as he has nominated or shall nominate by written designation, duly acknowledged and filed with such board. Upon application by or on behalf of the dependents of such deceased member, such board shall grant a pension of one-half of the final compensation of such employee: 1. To his widow, to continue during her widowhood; * * (Emphasis supplied.)

On February 6, 1947, two members of the medical board of the retirement system considered the application to determine whether the death of the decedent was the result of an accident sustained while in the performance of duty without willful negligence on his part. On the basis of a chemical analysis of a portion of a liver, alleged to be that of decedent, made by a toxicologist in the city medical examiner’s office, which analysis, according to him, showed the presence of ethyl alcohol to the extent of 3 plus, the medical board expressed the opinion that the deceased was willfully negligent in imbibing alcohol while participating in a hazardous occupation and recommended that the application for an accidental death pension be denied. The board of estimate, acting on that recommendation, adopted a resolution denying petitioner’s application. Thereafter, at the request of petitioner, the board of estimate reopened its decision and ordered a hearing on the matter before a trial committee consisting of an appointee of the board.

At the hearing the decedent’s foreman testified that he saw Kilgus at about 1:15 a.m. on the morning of July 9th, at which time he sat alongside decedent and conversed with him, while Kilgus ate sandwiches. At that time, he said, the decedent was not intoxicated. Thereafter, at about 4:30 a,m., but one and one-half hours before the discovery of his body, the foreman again saw Kilgus as the decedent was going to obtain some material to use on work to be done on one of the tracks. The foreman stated that decedent was not intoxicated at that time. He further testified, on cross-examination, that at no time did decedent’s breath smell of alcohol.

Extensive medical testimony was adduced — on behalf of respondents, from the. toxicologist, and on behalf of petitioner from a Dr. Leon A. Greenberg, assistant director of the laboratory of applied physiology and the section on alcohol studies at Yale University.

The former testified that he examined a part of the deceased’s liver which he said he had received from the medical examiner, and found alcohol present in the amount of .38%. According to his testimony, the presence of that amount of alcohol in the liver was indicative of a similar percentage in the brain, where a ‘ ‘three plus ” amount results in intoxication. On cross-examination this witness first stated that the authorities on the subject of alcoholism did not disagree with his theories, then later admitted that others did disagree with him. He.had also stated, however, on direct examination that there might be a difference of as much as .14% in the alcohol content of liver and brain. That might have reduced the brain-alcohol content of decedent here to but .24%, which would not have caused staggering.

Dr. Greenberg testified that after alcohol reaches the stomach and intestines, it is absorbed into the blood which passes first through the liver and then on to the other parts of the body including the brain. During the initial period of absorption, Dr. Greenberg said, the percentage of alcohol in the liver may be as much as six times as great as in the brain, and the percentage in the liver will always be greater than in the brain so long as alcohol is being absorbed from the intestines and the stomach. From an examination of the liver it would be impossible, said Dr. Greenberg, to ascertain whether an ounce “or even a quart ” had been consumed — all would depend upon whether the process of absorption by the blood had ended or was still continuing. He also testified that the American Medical Association, as well as the National Safety Council, does not rely upon analyses of the liver, but of the concentration of alcohol in the blood to determine the degree of intoxication.

A sharp conflict in expert testimony was thus presented.

After hearing and analyzing the evidence, the trial committee, consisting of one employee of the board, concluded that “ the death of the deceased was the result of willful negligence on his part in imbibing alcohol in violation of the rules of his employment and while engaged in duties requiring a high degree of care and responsibility, to himself for his own safety and to others for their safety.”

Footnotes

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* Accordingly, it was recommended that the application for accidental death benefits be denied.

A transcript of the minutes of the hearing, as well as the report of the trial committee and other papers, was presented to each member of the board of estimate prior to October 26, 1949. On that day the board met, discussed the application, and denied it.

In a proceeding for accidental death benefits under section B3-33.0 of the Administrative Code, the board of estimate is under a statutory duty, in the first instance, to pass upon the questions of sufficiency and quality of the evidence submitted by the petitioner in support of her claim (see Matter of Daley v. Board of Estimate of City of N. Y., 267 App. Div. 592, 602). It may appoint a trial committee, which here consisted of one nonelected employee of the board, to assist it in its consideration of the problems presented by the application, but may not adopt the report of such a committee without independent consideration of the sufficiency and quality of the evidence adduced before the trial committee since this latter duty is required of the board by statute, i.e., the Administrative Code. The question here presented is whether the board discharged this statutory duty. Petitioner contends that it did not; that three members of the board, possessing a majority of the votes, adopted the recommendation of the trial committee because they felt bound by its findings, making no independent determination of the matter themselves, in the belief and expectation that the courts would make a full review of the case-and remedy any error on their part. In our judgment, petitioner must prevail on this appeal for a reading of the following excerpts from the record discloses that the board underestimated its own power and duty and overestimated the power of the courts upon review, thereby, failing to exercise its duty of rendering independent judgment on the merits of the case:

u* * * Well, in voting I would like to say this, that I am going to vote to support the report of the Trial Committee for the reason that we appointed it and it sat and heard the testimony, but in doing this I am not attempting in any way to prejudice the right of counsel for the deceased to go into the courts and have a correct adjudication of this case. * * * I feel that the counsel will go into the courts and finally adjudicate this. For that reason, at the moment I will vote to sustain the Trial Committee.” (Emphasis supplied.)

íí * * # seems to me here that you have appointed a Trial Committee. The Trial Committee inquired into the factual situation. The claimant, if he goes before a court rather than before this Board, will be given a full and complete opportunity to raise these questions as to whether or not there was the proper admissibility of evidence or anything of that kind, which 1 don’t believe it’s within the province of this Board to do. I think that while it’s true we have a right to review the facts as found by the Trial Committee, that nevertheless where there’s a conflict in the witnesses’ evidence, all before the Committee and not before us, questions of credibility and other things that may have entered into the findings of this Committee, since you will be protected and have a full and complete hearing' before the courts, I think, in the absence of an absolute establishment of overwhelming proof that the Trial Committee was in error, that we ought to sustain the findings of the Trial Committee and let the courts give you your full day to be heard and to prove your case there ” (emphasis supplied).

“ * * * Gentlemen, this Board has appointed a Trial Commission [sic] because this is an unusual case. You have just heard there’s been three days of examination by experts and there’s 121 pages of testimony. The counsel has said that he has the right to go into court. * * * those are the people that we have asked to sit here, this Trial Committee. They have reported to us that this be denied and I move it at this time, sir” (emphasis supplied).

The findings of the trial committee were in no way binding upon the board and the board was mistaken in thinking that, in the absence of an ‘ ¹ absolute establishment of overwhelming proof ” that the trial committee was in error, its finding should be sustained by the board. As stated earlier, it was the duty of the board, in the first instance, to pass upon the questions of sufficiency and quality of the evidence submitted by the petitioner in support of her claim. The board likewise did not appreciate the full effect that its determination would have on the review available to petitioner in the courts. In the review of determinations of administrative bodies, the power of the courts is narrowly circumscribed (see Swayne & Hoyt, Ltd., v. United States, 300 U. S. 297; Rochester Tel. Corp. v. United States, 307 U. S. 125; Matter of Colgate-Palmolive-Peet Co. v. Joseph, 308 N. Y. 333; Matter of Weekes v. O’Connell, 304 N. Y. 259). “ ' The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body ’ ” (Rochester Tel. Corp. v. United States, supra, p. 146). The scope of review by the courts of determinations of administrative bodies is not the same as the review, for example, by the Appellate Division of the judgments of lower courts in jury cases, where the Appellate Division may review the facts as well as the law, and set aside the determination and order a new trial if that court finds it to be against the weight of the evidence or, in a nonjury case, where the Appellate Division has the same power to review the record and decide the questions of fact as the trial court (see Civ. Prac. Act, § 608; Cohen and Karger, Powers of the New York Court of Appeals, § 110, p. 468 et seq.). On the other hand, as phrased in the Civil Practice Act (§ 1296), the only issues as to the findings of fact by administrative bodies which may be reviewed in the courts are: “ Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination ” (subd. 6; emphasis added) and “ If there was such proof, whether, upon all the evidence, there was such a preponderance of proof against the existence of any of those facts that the verdict of a jury, affirming the existence thereof, rendered in an action in the supreme court triable by a jury, would be set aside by the court as against the weight of evidence ” (subd. 7; emphasis added).

Because of the strict limitation on the power of courts to review the findings of administrative bodies, we have felt impelled to declare (Matter of Weekes v. O’Connell, supra, p. 266): “ Their findings being subject only to limited judicial review, administrative agencies should ever be mindful of the heavy responsibility thereby imposed, and that responsibility should dictate conscientious and painstaking assessment of the evidence presented.”

The board of estimate had not only a right to review the facts as found by the trial committee, but a statutory duty and responsibility to do so (Matter of Daley v. Board of Estimate of City of N. Y., 267 App. Div. 592, 602, supra) — particularly in view of the very limited review of the findings of fact which the courts have decided they may make. The language of three members of the board, quoted above, shows a misconception of their function as administrative officers in a matter vitally affecting the outcome of the decision. The determination of the board must, therefore, as a matter of' law, as well as in the interest of justice and for the sake of affording the petitioner a full and fair hearing to which she is entitled by statute, be set aside and the matter returned to the board for a proper consideration. That petitioner had a prior hearing before the board of estimate is, of course, immaterial; for having reopened its decision for the consideration of new evidence, the board came under the same statutory duty imposed upon it in the first instance.

We are mindful of the rule that it is “ not the function of the court to probe the mental processes of the * * * [deciding officer] in reaching his conclusions ” (Morgan v. United States, 304 U. S. 1, 18; Matter of Weekes v. O’Connell, supra, p. 265). But, we do not “ probe ” the mental processes when we hold that statements made by members of the board, having a majority of the votes, clearly reveal that they made no independent appraisal and reached no independent conclusion (cf. Morgan v. United States, 304 U. S. 1, supra). We merely repeat their own statements of their own mental processes in reaching their conclusions.

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Rule 11 (subd. [a]) of the rules of the board of transportation of New York City prohibits employees from carrying or indulging in alcoholic beverages while in the course of their work.

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. Eule 11, subd. (a), of the Rules and Regulations governing employees of the New York City transit system provides that: “Employees must not indulge in intoxicating liquor or be under its influence while on duty or in uniform, nor must they report for or be on duty in an unfit condition. They must not be in possession of or carry intoxicating liquors on the System property at any time. The habitual use of intoxicating liquor or the indulgence therein to excess at any time is prohibited. Alcoholic breath, incoherent speech or staggering is prima facie evidence of being in an unfit condition.”