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Hammer v. Workmen's Compensation Commission

decided.: July 9, 1946.

HAMMER
v.
WORKMEN'S COMPENSATION COMMISSION ET AL.



Author: Maris

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The Workmen's Compensation Act*fn1 of the Municipality of St. Thomas and St. John, Virgin Islands of the United States, provides for compensation for the death of an employee which results "from a personal injury arising out of and in the course of his employment". The plaintiff, widow of Franz Albert Hammer an employee of the West Indian Company, Ltd., filed a claim with the Compensation Commission for compensation benefits pursuant to the Act. The Commission denied the claim upon the ground that the injury causing Hammer's death did not arise out of and in the course of his employment. The plaintiff appealed to the District Court which found that Hammer's death was due to injuries arising out of and in the course of his employment and entered judgment directing the Commission to authorize payment of compensation to the plaintiff. The Commission has appealed.*fn2

The evidence at the hearing before the Commission was substantially as follows. Hammer was employed by The West Indian Company, Ltd. at St. Thomas as a crane foreman. His contract of employment was in writing and provided, inter alia, "Working Hours and Remuneration: The normal working week consists of 48 hours. The working hours may fall at any time, Sundays and Holidays not excepted. 50% overtime will be paid after 48 hours a week, Sundays and holidays not excepted. The wages are paid according to the following schedule, and the stipulated monthly minimum wage is guaranteed you, provided you agree to work whenever required by the Company. Wage Schedule:

Guaranteed

Normal Payment Overtime Payment Minimum

per hr. per hr. Monthly Wages

Class 1 $1.30 50% Additional $225.00

Time will be figured in units of half hours. House: The Company will furnish you with a house during the term of this contract."

The contract was in force as of January 1, 1942. On February 7, 1942 Hammer's salary was changed by mutual consent to a flat basis of $275 per month. Prior to this change the company kept a time record for Hammer in which it computed his hours of work from the time he left his house. After the change no time record was kept.

Part of the business of the company was to give 24 hour refuelling service to boats which stopped at its dock. Hammer was in charge of the crew which rendered this service. It was customary for Hammer to round up the members of his crew and report for work at any time that a boat needed this service. On Saturday, February 3, 1945 Hammer was informed by the company superintendent that a barge was expected at the dock Sunday evening. Again at about noon on Sunday, February 4th he was told by the company's chief clerk that the barge was expected that evening. As a matter of fact the captain of the barge changed his mind and did not dock until Monday. However, the only persons who knew of this change in plan did not communicate with Hammer. At about 6 o'clock on Sunday evening Hammer returned home with the express purpose of being near the dock should the barge arrive. At 7 o'clock he phoned the watchman at the dock and asked to be told when the barge arrived. He then rested for a time. At 9:45 o'clock he dressed, told the plaintiff he was going to pick up his crew and that he would be back from work about 4 o'clock Monday morning.

At 7 o'clock on Monday morning the plaintiff telephoned the dock because her husband had not returned and she was told he had not reported for work. She then went to the garage and discovered her husband's dead body. He was lying face up, one shoulder against the back of the car, the other shoulder against the wall of the garage. His left leg was bent and under the car. Soot covered his face and chest, which were directly in line with the exhaust pipe of the automobile. The motor was still warm but not running. All the gasoline in the tank had been consumed. The testimony was all to the effect that Hammer was in good health, good spirits and had no known domestic or financial worries. The medical testimony was that his death was due to carbon monoxide poisoning. Hammer was survived by his wife, the plaintiff herein. He had no children or other dependents.

From this evidence at the hearing the Commission found:

"1. No satisfactory evidence that the decedent was called by telephone from the ...


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