BANKS v. CHICAGO GRAIN TRIMMERS

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Argument of Harold A. Liebenson

Chief Justice Earl Warren: Number 59 Agnes M. Banks, etc., Petitioner versus Chicago Grain Trimmers Association Incorporation et al.

Mr. Liebenson.

Mr. Harold A. Liebenson: May it please Your Honor and Justices.

I believe that we have to start a little bit with the facts in this case because of the unusual situation.

You have an occurrence that took place on January 26 in 1961 where a man was injured at a gateway elevator company where there were no eyewitnesses, where the time was unknown, where he was working as a button man and his type of work and he was allegedly struck on the forehead with some steel, but no one saw this and there’s no evidence in the record to sustain it.

The only thing there was in the record was a statement that there was a little tiny black mark on his forehead.

This particular case came to trial before the Longshoremen Commissioner and on the evidence, he made a finding that there’s no evidence of this man being injured on January 26th in the course of his employment.

Thereafter I happen to get in the case and I heard about another occurrence which took place on January 30th 1961.

Now it should be pointed out that on January 30th about two hours after this occurrence, the man came home and from the top of his steps suddenly catapulted from the top of the steps to the basement no evidence of tripping and no evidence of the man protecting himself, in other words his hands his hands didn't go forward or anything to do anything to, for self-protection.

Now, when this man fell, he remained unconscious till his death on February 12.

When the case came to trial at the first hearing, the respondent had in its possession a statement from an eyewitness to the occurrence of January 30th, but this was not made known and you now have a widow bringing the action, not a person who was injured and alive and who can tell about it.

On January 30th, I'm sorry let me go back.

Subsequent to this, I filed a -- I heard about the witness and I filed a lawsuit a third party action in the Federal Court and I subpoenaed the insurance company record and I obtained a copy of the statement that they had.

Now, the statement was dated on April 8, 1961, the hearing on this first occurrence was on January 26, 1961.

At no time during this January 26, 1961 hearing is there anything about an occurrence that took place on January 30.

Now the occurrence that took place at January 30th took place at another elevator, a distance away.

It was -- the man was doing a different type of work.

He was -- there was an eyewitness who saw this and saw that he -- wherein he was hit on the top of the head from approximately 30 pounds of rope that fell about 50 feet and the man was seen rubbing his head.

Now, this case after it was tried in the Federal Court, the jury brought in a verdict in our favor for the maximum which was $30,000 and subsequent thereto the trial judge entered an order of remittitur of $11,000.

The Court of Appeals, I stepped out of the case basically because the government took over at that time, and the Court of Appeals held that the first occurrence was res judicata of the second occurrence and the basis for the Court of Appeals' ruling was number one, they cite the Baltimore versus Phillips, a steamship case at 274 U.S.

Wherein the, there is no comparison as to the facts.

In that particular case there was a sailor who sued under the Admiralty Act for maintenance and cure and negligence and unseaworthiness and then after there was a verdict in that case then he went to another court and brought another action under the Jones Act case and the Court probably said, well your rights were determined in this first hearing.

Justice William J. Brennan: Mr. Liebenson?

Mr. Harold A. Liebenson: Yes sir.

Justice William J. Brennan: If you prevail do you have to cut at that $19,000 on --

Mr. Harold A. Liebenson: Yes, Your Honor.

I will cover that later on too.

Justice William J. Brennan: Yeah, well, I'm just, so that there's a possibility of recovery in this proceeding in excess of $19,000.

Mr. Harold A. Liebenson: Yes sir, it's about 70,000, I think in this proceeding total.

Justice William J. Brennan: That -- is that, does 70 mean this is, the statute provides a computation which produces 70,000.

Mr. Harold A. Liebenson: Yes sir, yes sir.

I mean I think that would be the ultimate.

Now, so then the other basis that the Court of Appeals gives is that Section 22 is not applicable and they say the reason it's not applicable because there was at no time was there a disputing of the findings of fact within the 30 days under Section 921 and they cite the case of Flamm versus Hughes 329 F.2d 378 and that case is not in point.

That was a case where they were testing the constitutionality of the Section, where -- Section 921, where there was n change in conditions and there was no additional evidence, that counsel in his brief doesn't rely on the case of Flamm versus Hughes or doesn't cite that, cite it.

Whereas on page 14 of our brief we cite about five or six cases which clearly holds that Section 22 does apply in -- after 30 days.

The other basis that the Court of Appeals gives is that Section 22 doesn't apply because the Deputy Commissioner was not aware of the January 30th accident until more than one year after the rejection of the claim and this was clearly erroneous because on the record it shows that the second claim was filed one and a half months after the occurrence.

So we have all three basis of the court incorrect in our opinion.

Our contention here is that Section 22 precludes the doctrine of the defense of res judicata during the year following a decision of a Deputy Commissioner.

I think that was the purpose of the act, that was a purpose that it was put into it, that was a purpose that they amended the act and our reading the act makes it very clear.

After all you're dealing with people who have come before a person who is in most instances not a lawyer.

They have no discovery procedure.

They try to make it as simple as possible although I do believe that discovery procedure should be permitted in this type of a case and the counsel contends that there is discovery procedure, but I can't see it because the way the statute is worded, they're talking about testimony and this is very similar to the case I had before this Court in the case of Minor versus Atlas where this Court held that a local rule which allowed discovery procedure was unconstitutional because there was no provision in the statute for it and the words almost similar.

What they're talking about is testimony, the power to take testimony of a Deputy Commissioner and not to make -- have interrogatories or to have adverse witness procedure.

I hope --

Justice William J. Brennan: What you are telling us is that you could have not got hold of the copy of this report.

Mr. Harold A. Liebenson: That's right sir.

Justice William J. Brennan: In their possession which you say reveled that there had been this additional incident on the 30th of January.

Mr. Harold A. Liebenson: That's right sir and this widow would have no way of knowing it.

Now the other, the other phase --

Justice Abe Fortas: This Court matter in ordinary litigation and the same facts occurred, would you be able to maintain your second suit?

Mr. Harold A. Liebenson: Yes sir.

Justice Abe Fortas: On what ground?

Mr. Harold A. Liebenson: Because my contention is that there are two separate causes of action and one --

Justice Abe Fortas: What are the two separate cause of action, you got cause of action here for wrongful death, haven't you?

Mr. Harold A. Liebenson: No, no

Justice Abe Fortas: In terms of litigation?

Mr. Harold A. Liebenson: That -- with due respect this kind of argument was submitted in the briefs in the Court of Appeals.

Now what they are saying is that because a man died, there is only one cause of action but that to me is like saying that when this Court refuses to grant certiorari that this case has been decided by this Court because your --

Justice Abe Fortas: And I have difficulty with that analogy?

Mr. Harold A. Liebenson: Well because of this reasoning; in number one instance the man had a separate cause of action going on January 26.

Justice Abe Fortas: What was that cause of action?

Mr. Harold A. Liebenson: Where he was allegedly hurt but there was no proof of it.

Justice Abe Fortas: The widow here has brought an action for wrongful death, hasn't she?

Mr. Harold A. Liebenson: Yes sir.

Justice Abe Fortas: And she brought an action to us saying wrongful death because he was hit what by, piece of steel or something.

Mr. Harold A. Liebenson: At January 26th.

Justice Abe Fortas: By what, he was hit by --

Mr. Harold A. Liebenson: By a piece of chain.

Justice Abe Fortas: Alright, piece of chain.

She loses.

Then she brings another action for the wrongful death of her husband and in that action she says the wrongful death of her husband was caused by some rope that hit him, is that right, is my recollection correct?

Mr. Harold A. Liebenson: Yes sir.

Justice Abe Fortas: And what you are saying is that those were two different cause of action and if this had been -- these had been actions brought in court of law that they would have been two different cause of actions?

Mr. Harold A. Liebenson: Yes sir, because you have two separate incidents.

Now that doesn't mean you can recover for both of them and nor did she recover in this instance on both causes of action.

She only recovered on one.

Justice William J. Brennan: But I understand you are saying that even if you are wrong about that as applied to a lawsuit, you have a statutory provision here --

Mr. Harold A. Liebenson: Yes I was going to get to that.

Justice William J. Brennan: -- which permits you to do what you -- you don't have to rely on being right about in your answer to Mr. Justice Fortas, do you?

Mr. Harold A. Liebenson: No sir, but I had answer his questions.

Justice William J. Brennan: Yeah, incidentally may I ask on discovery?

Suppose there is discovery here, suppose you did have a right of discovery and you didn't exercise it, would you be taking -- would you figure -- foreclose them from this?

Mr. Harold A. Liebenson: Because of Section 22 no, no.

Well I just happen to believe in this discovery procedure.

Now on this we also have a statute which is Section 22 which clearly gives the Deputy Commissioner the right to change his ruling upon any change of conditions and these change of conditions were brought out.

The Deputy Commissioner knew of the prior occurrence.

It was the same Deputy Commissioner.

The Deputy Commissioner knew that the other side or the respondent had filed a petition or alleging res judicata and he knew the position of parties when he heard the second case.

It is also our contention that the Doctrine of res judicata doesn't apply and we contend because they withheld this information pursuant to Section 30 of the act which was -- where they did not file a Form 202.

Now the general procedure when a Form 202 is filed you have a what is called as a pretrial hearing by the Deputy Commissioner and you go over the particular part or if no claim is filed, it is to the general procedure of the Deputy Commissioner's office to notify people saying well are you going to make a claim under this act in order to protect the injured workers.

Now, our position that the Doctrine of res judicata isn't applicable on the -- aside from statute --

Justice William J. Brennan: Incidentally is there any copy of that form 202 in the appendix?

Mr. Harold A. Liebenson: No sir.

Justice William J. Brennan: None was filed?

Mr. Harold A. Liebenson: No sir.

Justice William J. Brennan: Well what's that supposed to say?

Mr. Harold A. Liebenson: Well that's supposed -- that's under the Section 30.

It's supposed to tell the date the time and the place of the occurrence and --

Justice William J. Brennan: This is an obligation the statute imposes on the employer, is that it?

Mr. Harold A. Liebenson: Yes sir, within page 15 of our brief it set forth within 10 days from the date of any injury or death or from the date that the employer has knowledge of a disease or infection and so forth, he should give the name, address and business of the employer, the name, address, occupation of the employer, the cause and the nature of the injury and so forth.

Now they didn't file a Form 30.

They withheld the name of the witness or any information pertaining to an accident of 30th.

At no time did the Deputy Commissioner hear any questions pertaining to the 30th.

Justice William J. Brennan: How he finally get hold to this information that had been filed?

Mr. Harold A. Liebenson: Actually what had happened was some time afterward, the referring attorney came to me and said I heard there is a witness and we just went out and investigated and located a particular man who is not --

Justice William J. Brennan: And is that he say, that he had filed such a report?

Mr. Harold A. Liebenson: Yes sir, that's how we found about it that he said, oh I gave the statement to them a long time ago.

They came out and they interviewed me.

The -- there is one interesting article on res judicata and claim peculation by professor Vesto in North Western University Law Review volume 62 number 3 which sort of covers the subject very thoroughly, but what I am trying to get at is that basically this all comes down to certain questions.

Was there a trial at the first hearing which related to the January 30th occurrence and the answer to that would be no.

Was there any testimony of the January, at the January 26th occurrence hearing pertaining to the 30th that would be no.

And was the occurrence of January 30th 1961 an issue or litigated or determined and there was no issue cited in this particular case or decided in this case about the January 30th occurrence.

Justice Byron R. White: Would you say that if the state had provided for the trial of this kind of a claim in the ordinary courts that you would still be contending for the same rule or are you saying there is a different rule of preclusion or res judicata between the administrative determination and the courts --

Mr. Harold A. Liebenson: No sir I'm saying that pick up, number one -- number Section 22 under -- because of Section 22 there is no res judicata and if otherwise I also say there is still isn't res judicata because they withheld the certain information that was all within their control and they didn't divulge it.

There is one another point I think should be covered and this is the question of the remittitur.

Counsel contends that because we accepted a remittitur of $11000 ordered by the court that this was a compromise on our part and therefore we wouldn't be permitted to recover.

The -- I think I should explain to the Court that after the verdict, when the judge entered the remittitur or said he would enter a remittitur of $11000 or grant a new trial, I was faced with the position at that time of deciding whether we should accept the remittitur or appeal.

If we appealed this case the only person who would gain by the appeal would be the attorney or myself because if successful on the appeal I would get a larger fee, whereas if I didn't appeal, I still had a record of a jury verdict holding that on the 30th of January this man was killed as a result of being injured in the course of his employment and the other side would be entitled to the credit anyway.

So that my people by accepting $19000 did not lose anything because the other side would get the credit.

In other words if I am entitled to 70,000 in the court of -- at the Longshoremen Commission and I accept 19,000 I am still entitled to the balance of $51,000 whereas if I appealed it and got the verdict reinstated to 30 all I would do is be getting -- my people would still end up with the same amount of money but I would be getting a fee and I thought I would be criticized for it and so I didn't want to take that appeal.

Justice William J. Brennan: Does the jury finding -- is that res judicata against the employer as to happening on January 30?

Mr. Harold A. Liebenson: I'd like -- that would interesting.

I did, I don't feel it would be because --

Justice Potter Stewart: Your case was against the third party?

Mr. Harold A. Liebenson: That was against the Norris --

Justice Potter Stewart: The remedy court actually against the employer?

Mr. Harold A. Liebenson: I would like to apply that as an estoppal but I actually felt that as long as -- frankly as long as the jury came in and I figured that so would the Deputy Commissioner go along and give him an award.

Justice William J. Brennan: And this is what happened?

Mr. Harold A. Liebenson: This is what happened sir.

Justice Byron R. White: Now the Court of Appeal ever reached 33 G question?

Mr. Harold A. Liebenson: No they just stopped, they went to res judicata and stopped.

Justice Byron R. White: But if they -- they assume they were wrong on that?

Mr. Harold A. Liebenson: Yes sir.

Justice Byron R. White: What if they were wrong with res judicata then they would have reached 33 G?

Mr. Harold A. Liebenson: Well, that would be one of the issues before them, but --

Justice Byron R. White: Are you -- do you ask us to decide that question here?

Mr. Harold A. Liebenson: Yes sir and we bring it out in our brief the question we ask is whether or not a --

Justice Byron R. White: We shouldn't, you say we shouldn't remand, assume the Court of Appeals is wrong on res judicata.

You are saying we should go ahead and decide the other issues in the case to know and not remand.

Mr. Harold A. Liebenson: Yes sir because we briefed all the other issues in the case as part of this case.

In other words all issues that are presented are before this court.

Justice William J. Brennan: Is this issue of remittitur under 33 been litigated in any other case that you know?

Mr. Harold A. Liebenson: No sir except in the case cited by counsel, there I find no other case other than one where there was a consent directed verdict by counsel, that is cited by counsel, but no other case that I could find.

Justice William J. Brennan: So the issue whether this is a compromise under the statute has not --

Mr. Harold A. Liebenson: Been decided.

Justice William J. Brennan: Decided by any other court.

Mr. Harold A. Liebenson: That's right sir other than what's in the briefs.

Justice William J. Brennan: So there will be, well what in the briefs?

Mr. Harold A. Liebenson: Well we have just a few cases and those are based on the New York case.

Justice William J. Brennan: From which this statute was taken or something.

Mr. Harold A. Liebenson: Yes sir yes sir.

Justice William J. Brennan: And the New York cases remitted to was not a compromise.

Mr. Harold A. Liebenson: That's right sir.

Justice William J. Brennan: And you are asking that we -- that was an interpretation of the statute that Congress adopted from New York.

Mr. Harold A. Liebenson: Yes Your Honor.

Justice William J. Brennan: And we should give the same interpretation New York Courts had given.

Mr. Harold A. Liebenson: Yes sir.

Chief Justice Earl Warren: Mr. Braun.

Argument of Mark A. Braun

Mr. Mark A. Braun: Mr. Chief Justice and may it please the Court.

As has been developed in the argument there are three issues in this case, the determination of any one of which requires the reversal of the award entered by the Deputy Commissioner.

The first is a question of res judicata.

This is the issue that was determined by the Court of Appeals and on a finding that it should be applied, it did reverse the deputy commissioner.

The other issue of whether or not there was a compromise has not been determined and there is also issue of substantiality of the evidence and the cause of connection which was not reached by the Court of Appeals.

The argument now appears to agree and the briefed now appear to agree which was not true in the Court of Appeals that the doctrine of res judicata maybe applied to administrative determination.

We suggest to the Court that of all the wide variety of administrative determinations, the determination of the liability issue in a compensation case most of all requires a strict application of the Doctrine of Res judicata because it is a judicial determination that is a nature of a judicial determination and is a determination of a past fact.

I like to call the Court's attention very briefly to the purpose of this statute the Workmen's Compensation Statute, Longshoremen's and Harbor Workers' Compensation Act.

This type of social legislation came about as a result of the situation that obtained the time of the industrial revolution.

Work connected injuries were going uncompensated.

The employee found himself in the position most frequently where he had no recovery for on the job injury.

The reason for it was this.

The development of corporate employers, the employer could not be found.

He could not prove negligence because he had to overcome the three common law defenses, of contributory negligence, assumption of risk and fellow-servant doctrine.

Secondly, the reason for this statue was that the expense of litigation and the time involved prevented the employee from pursuing his claim, therefore compensation.

What did compensation do?

Immediately it eliminated the concept of negligence entirely with reference to work connected injuries and substituted a system of showing work connection only.

The question of negligence did not, was not involved then as between an employer and an employee.

The second thing that the compensation did was to provide a hearing before an administrative agency as opposed to the court and a jury, again for the purpose of providing a prompt, a final, and an inexpensive determination of the liability issue.

With that purpose in mind we suggest to the Court that the compensation system can be preserved only by strict application of the doctrine of res judicata.

If that is not done then in any industrial injury claim, you can have repeated trials on the question of work connection.

The employer can defend a case first of all on the ground that the relationship didn't exist then they could have no trial according to petitioner's theory on the question of whether there was an accident then possibly another trial on whether or not the condition preexisted.

And after all of those trials at the administrative level then we can still take Section 21 and appeal it through the Courts.

If res judicata is not applied then the primary purpose of compensation system would be destroyed.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Section 22 and I'll get to that a little more detail Your Honor was strictly to give the Deputy Commissioner, the Administrative Agency, a vehicle by which they could exercise continuing supervision over the degree of disability and I think that the legislative history which we attempted to develop in our brief demonstrates that that is the purpose of Section 22 and the purpose is not to retry the issue of liability.

Justice William J. Brennan: I see, that's you mean if there is a finding of viability and an award of 10 percent [Inaudible]

Mr. Mark A. Braun: That is the purpose.

Justice William J. Brennan: Will allow the [Inaudible]

Mr. Mark A. Braun: Yes, award for the medical care or any other change in the amount of compensation as it's related to his physical condition.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: You do not.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: The legislative history, I have cited the reports of the commission in my brief and I have not been able to find specific language in those reports, these are reports of the commission to the Congress with reference to amendments and they don't specifically say that, but when you look at the statutes of the States which preceded this Federal Statute, this was the restrictive meaning of the reopening provision.

Most of the compensation statutes of the various states do have a review or a reopening provision and it is directed toward this function of supervising.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: No, New York, well, New York has a similar provision, it is not identical.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: But it similar in fact that it talks about a change of condition.

The New York Statute does not have to my knowledge the word mistake in it.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Yes, well and this is the question, what do they mean by that in this section.

Justice William J. Brennan: [Inaudible] the progress of the condition.

Mr. Mark A. Braun: Yes, there would be a change of condition in both terms I use --

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Well, this part of the question.

What do they mean with the same mistake, what kind of mistake?

Justice William J. Brennan: Well, how do you meet your limitation into the word mistake?

Mr. Mark A. Braun: By looking at, what I see -- well, this statute first of all started with change of condition only.

It is my feeling that because this statute does not have any provision as many statutes do for changing a simple clerical error, but that's what it's for.

It doesn't say that's what it's for.

We could only go into the background to attempt to determine what the word is therefore.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Yes, Your Honor, there are -- any of cases distributed with that.

Returning to my original thought that I --

Justice Abe Fortas: Suppose a Deputy Commissioner made a finding that the deceased or claimant had not been on board to ship that day at all and then within one year, the Deputy Commissioner has reason to believe that he made a mistake and that the claimant was on ship.

Certainly, that kind of thing would be covered by Section 22 if that mistake were called to the Deputy Commissioner's attention within a year, is that right?

Am I wrong about that?

Mr. Mark A. Braun: I'd disagree with that.

This would be a basic question of liability and with reference to, if you're not on board ship, so you were on land and there would be Federal Jurisdiction at all and in that narrow area it is possible that there could be a trial de novo in the District Court, but only in that de novo area.

Justice Abe Fortas: Well, of course, getting close to this case.

Suppose that the Deputy Commissioner had found that a deceased was not hit by the rope at all.

And then within one year the Deputy Commissioner for some reason rather concludes that he made a mistake of fact and he reopened the case under Section 22 you say he cannot.

Mr. Mark A. Braun: It is our position that he cannot.

Justice Abe Fortas: But that's certainly it's not what the language says, is it?

Mr. Mark A. Braun: The language simply says he may review a determination.

Justice Abe Fortas: Because of, he says upon his own initiatives or upon the application of any party in interest on the ground of -- no, because of a mistake in a determination of the fact by the Deputy Commissioner, the Deputy Commissioner may accept or review a compensation case.

Mr. Mark A. Braun: That is what --

Justice Abe Fortas: That sounds and reads is if it's very broad but you say reading, it can read mistake in a determination of fact to me what it says that's --

Mr. Mark A. Braun: Only in, for the purpose of that section and this goes to the physical condition or the degree of disability and I suggest to the Court that that is the only purpose of that section because if we do not limit the purpose of Section 22 to a reexamination of the extent of the degree of disability then we have again destroyed the purpose of the whole statute to give a prompt and efficient, definite remedy.

And going back to all of the cases, in other states and even in the cases under Section 22, isn't it strange that in all this time, there is no case and they haven't cited a case where they relitigated the liability issue.

Every single Section 22 case from the outset has to do with the degree of disability and this our position with reference to 22.

Justice Abe Fortas: What is 919 of 33 U.S.C?

Mr. Mark A. Braun: 919 is the Section which provides that compensation maybe awarded.

It's a general terminology, general section as to the entry of an award.

Justice Abe Fortas: You read that, I won't probably going to the read the entire Section 22, but it does refer to reviewing a compensation case in a court with procedure prescribed in respect to claims in Section 919 of this title, then goes on to say and in accordance with such section issue a new compensation order which may terminate continue reinstate increase or decrease such compensation --

Mr. Mark A. Braun: Yes, I think that --

Justice Abe Fortas: Or award compensation.

Mr. Mark A. Braun: That reference --

Justice Abe Fortas: So he could reopen for the purpose of awarding compensation?

Mr. Mark A. Braun: No question about it and I think we have to consider the nature of these --

Justice Abe Fortas: And now if you -- if you're saying no question about that then you square that with what you --

Mr. Mark A. Braun: The reference to Section 19 and Section 22 is to suggest that he would use the same procedure that is the order hearing, ignorance and so forth.

Justice Abe Fortas: (Voice Overlap) Preference of awarding compensation.

Mr. Mark A. Braun: Yes, because in most of these cases Your Honor, not most of it, but in many cases you can have a determination of liability without an award of compensation.

Take for example the man that has a back injury, the employer pays his medical expenses and he pays him his weekly compensation benefits for two or three weeks and he goes back to work, but he files a claim.

He is doing the same job, but his back is still hurting him.

The Deputy Commissioner says no compensation due.

Three months later the back gets so bad that he needs further medical care or he is unable to work under this section he can then award comp although he did not before and I think this the purpose of that section.

With reference to the general application of res judicata I do think that the, this Court's opinion in Baltimore versus Philips is very clearly pertinent in that it established that there is but a single cause of action.

Now in that case admittedly the Court was referring to the requirement that a plaintiff allege all of the various possible elements or types of negligence in a single action.

Now that case becomes analogous with a compensation situation only when we recognize that negligence is not a factor here but that the entire body of work activity must be --

Justice William J. Brennan: Well, are you telling under section 22 that the whole credit of what maybe done, is that there is already an outstanding or rather the employer has already paid compensation, whether he's paying it pursuant to award compensation or paying without an award compensation?

Mr. Mark A. Braun: No, the prior payment, no Your Honor I did not say that, I say that that it may be utilized only when there has been a prior determination that an industrial injury occurred, now it doesn't have been a payment of compensation.

Justice William J. Brennan: Well what about the simply under ordinary state compensation, frequently employer is just paying --

Mr. Mark A. Braun: That is correct.

Justice William J. Brennan: Or actually compensation what they describe payment of statute requirement, there is no actual awards are running, is there any finding of liability [Inaudible]

Mr. Mark A. Braun: That is correct, now if that --

Justice William J. Brennan: That's how the best practice is called here.

Mr. Mark A. Braun: Yes it is.

Very frequently the employer will commence the payments without any hearing at all, but if we have --

Justice William J. Brennan: Without any award.

Mr. Mark A. Braun: Without any award if you have that circumstance and the employee then wants to get an award he doesn't file under 22, he files an initial claim.

He doesn't file a reopening claim or a modification claim under 22.

He files his first case and at that time the employer could even though he has paid comp, question liability.

Justice Byron R. White: There may be, there maybe a recent termination if there has already been, has been a determination of that liability.

Mr. Mark A. Braun: This section that can be used only with reference to disability, this section I suggest doesn't apply at all to the --

Justice Byron R. White: But then you say it's not available at all there was a determination [Inaudible] that there was no compensable accident.

Mr. Mark A. Braun: Yes, exact determination has been made that that the --

Justice Byron R. White: It's never reviewed then.

Mr. Mark A. Braun: Except under Section 21, which in 30 days through the courts yes.

I suggest that that holding is essential to preserve the right of thought here because if we, if it is not so interpreted then anybody can re-litigate and re-litigate ad infinitum.

Justice Byron R. White: And with more different hearings?

Mr. Mark A. Braun: Yes, as in this case --

Justice Abe Fortas: Well ad infinitum within one year.

Mr. Mark A. Braun: Well this is the thing where from the standpoint of the employee either is even a greater hardship.

The employee would have only one year if the claim were denied, but this section also says that it maybe possibly reopened within one year from the date of the last payment.

Yes, so if there is an award finding liability and awarding compensation and then the employer decides he wants to contest that basic liability issue his chance to contest it, does not terminate with one year.

Every time he sends out a weekly compensation check the year is extended and is reapplied.

So the employer under their interpretation could contest any liability issue forever so long as some payment was being paid.

I don't think that's the purpose of the statute.

I suggest to the Court that it is absolutely not the intention of the statute to permit that type of interminable litigation on the liability issue.

With reference to res judicata the one other comment was raised, one other objection to the application and that is that in this case the employer prevented the petitioners from bringing forth all aspects of their claim in one hearing.

An examination of the chronology of events I think shows that that simply is not true.

I think first of all we must consider the relationship here.

The Chicago Grain Trimmers association Inc is in fact a corporation, but it is a corporation owned by the men that do this type of work, Grain Trimming is nothing of than loading or unloading grain.

The men that do this work formed a corporation.

John Banks the deceased in this case was an organizer of that corporation.

His brother Lawrence Banks was in fact the President of the corporation at the time that John Banks felt down at home and sustained fatal injuries.

Frank Costello was a trustee of the association.

Frank Costello is the brother of Mrs. Banks.

Now so that the petitioners here that widow and the children are very closely associated with the employing entity.

John Banks felt down at home on January 30th, he struck his head in the basement floor and it is agreed throughout the record that the fatal injury sustained there what caused his death 12 days later, 13 days later.

When Mrs. Banks testified in the first trial, excuse me, at the time of the first hearing it was alleged that there had been a cable snapping incident on January 26th, and a series of witnesses, 10 or 12 of them were brought in and the whole sphere of John Banks activity from January 26th up to the time of his death was explored.

At the time of the second trial Mrs. Banks admitted that right after the funeral she and her son and her brother had discussed this alleged I assume was called alleged rope falling incident of January 30th.

They discussed it at home.

She discussed it with her lawyer prior to the first trial.

Her lawyer knew about this alleged incident prior to the first trial.

Now when all of these witnesses were presented in the first trial not one of them mentioned anything about it.

Justice William J. Brennan: Well how does that testify that the employer [Inaudible]

Mr. Mark A. Braun: Because at that time -- from here I will finish this one and I'll come right to that.

The lawyer and Mrs. Banks said throughout -- in all of her testimony I cross examined them, when I ask them about the 30th what happened, how did he feel, what did he look like, what did he say, we into his activities in that day.

In my finding --

Justice William J. Brennan: [Inaudible] your client has filed report that there had been another incident on the 30th.

Mr. Mark A. Braun: I had a penciled memorandum from an investigator who said that one man had talked about a rope incident at that time.

This investigator and this testimony is in the record, this investigator said he checked it out and there was no substance to it whatsoever because the date was wrong, he suggested the rope incident when at a time like 2 o'clock in the afternoon, when the operations had stopped a half a hour and then they worked for two more hours.

That would be closing time up to about 4 o'clock or after.

On this day, January 30th everybody left before 2:30.

So this notation was in the file that somebody had said this, but on checking it out the investigator said this is after thought it just doesn't clear out, doesn't, doesn't it is not supported by anybody and then all of the other people were interviewed court reporter statements were taken and there wasn't a single bit of collaboration to this one statement.

So I suggest even looking at it from this date that notation did not even give rise to a reasonable suspicion that there may have been another incident.

Justice William J. Brennan: What reward did the Deputy Commissioner have on [Inaudible]

Mr. Mark A. Braun: That man.

Justice William J. Brennan: He had the eyewitness whose -- that you have.

Mr. Mark A. Braun: Yes and he is the only witness.

Justice William J. Brennan: Did he tell a different story on the stand that he was a Deputy Commissioner, that information had given [Inaudible]

Mr. Mark A. Braun: But not, not substantially no.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: Well this is the point at the time of the first hearing the investigator had concluded there is absolutely nothing to this.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: Yes, he described rope-falling incident, but I would suggest to the Court with reference to that and it is outlined in more detail in the substantiality issue that even if you take mere modest testimony before the Deputy Commissioner, no member of this Court could believe that there ever was a rope-falling incident.

I'll mention it just briefly now.

He said that John Banks was standing on the edge of a barge, that there was rope from -- in front of him passing above his head to a pulley some 50 feet above his head.

That this rope broke, he didn't see it break, but the rope then in a free fall coiled into a ball and inner ball sat upon his head and then he leaned forward over the hatch cover this ball of coil rope remain on his head.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: I don't know they did and this is part of the compromise for this reason Your Honor.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: They did Your Honor and they did --

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: There was a resident -- for instruction in that case and I think that's why the judge in the jury case was ready to set it aside.

There were nine paragraphs of error in that jury trial.

Now--

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: I think this is correct that something may have happened on that date.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: Yes then there was that jury verdict, but I would suggest that the -- certainly from the conduct of the first hearing there was no withholding.

If anybody had any knowledge about it Mrs. Banks did and as far as statutory requirement reference to notice, the statute here says that an employee or the employee's dependents have an obligation to file a written notice when an accident occurs with the Deputy Commissioner and with the employer advising the employer of the occurrence.

Justice Byron R. White: Well what about the obligation?

Mr. Mark A. Braun: On the employer.

Justice Byron R. White: [Inaudible]

Mr. Mark A. Braun: The obligation on the employer Your Honor is when they learn of an incident think of the time again, this man died on February 12, this statement was taken on April 8th five weeks before the trial when an application has already been filed and the only penalty is that the statute limitations has not run, but what's the penalty on the -- on an employee or a petitioner for not notifying the employer or not notifying the Deputy Commissioner, the claim is barred.

Now Mrs. Banks testified that she knew about the rope incident and that she knew about it right after the death and she talked about it with her lawyer before the trial.

They didn't file any form that's required under the statute and that failure to give written notice in and of itself bars the second claim.

Chief Justice Earl Warren: That came out of the trial.

Mr. Mark A. Braun: Yes Your Honor the second trial it came out that they knew about this and withheld it, didn't mention it during the first trial.

Chief Justice Earl Warren: In view of that fact aren't we left to the question of whether this is res judicata, so that we can re-litigate that can we?

Mr. Mark A. Braun: I think that is true yes Your Honor.

Chief Justice Earl Warren: This is just to make way doesn't it?

Mr. Mark A. Braun: Well, I talked about this because it was brought up for the reason that res judicata can apply if they were prevented from bringing it out.

I mention only because they simply were not prevented.

They knew about it in every opportunity to bring it out that's the only --

Chief Justice Earl Warren: Whether the question is res judicata.

Mr. Mark A. Braun: Yes, there is a second full and complete question here Your Honor and that is compromise issue.

Justice Byron R. White: Do you think we should decided that?

Mr. Mark A. Braun: I think -- well I wouldn't presume and tell what you should do, you have certainly have the right to one of the issue brought here as you do have the right to decide the substantiality issue.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: I don't think there is any dispute about what happened here Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Not ordinarily no.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Yes I can make up a compensation case when you did.

I know Your Honors before that.

Justice Hugo L. Black: Both sides have argued that --

Mr. Mark A. Braun: Yes.

Justice Hugo L. Black: Both sides have argued it in their briefs --

Mr. Mark A. Braun: Yes both, all three issues are put forth in the brief.

Justice Hugo L. Black: You have the [Inaudible]

Mr. Mark A. Braun: Well, this is why I suggest to the Court that it can't be hurt because it is not a complicated issue.

There is not a great mass of evidence on it and this is true also with the substantiality issue.

Justice Byron R. White: [Inaudible]

Chief Justice Earl Warren: Two trails.

Mr. Mark A. Braun: The two commission trials yes Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: Yes Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: We do not.

Justice William J. Brennan: [Inaudible]

Mr. Mark A. Braun: No the issue of compromise.

Justice William J. Brennan: [Inaudible] of substantiality.

Mr. Mark A. Braun: Of substantiality it's there yes and we suggest there that even if you believe the issue of substantiality goes to the point even if you believe that there was a rope incident there is no proof that that rope incident had anything to do with this man catapulting down the basement steps at home.

One cause of connection witness he said yes and then when the Deputy Commissioner reminded him what the real facts were he said no it could not happen.

I think that just does not meet the test of substantiality.

In concluding I would again wish to re-urge the issue of compromise.

The employer has liability without fault under compensation when negligence is eliminated but Section 33 does intend to protect the employer when there is a recovery against a third party.

The language is very clear.

If you compromise a case without the employers written approval, you may not proceed with compensation.

This is precisely what they did and the real fact of this occurrence, the entry of remittitur, fact that this compromise is called a remittitur does not make it a compromise remittitur --

Justice William J. Brennan: The fact that the New York courts have said that [Inaudible]

Mr. Mark A. Braun: No Mr. -- there is one case cited in their brief, the Gallagher case where a remittitur was entered.

The New York Court said that was not a -- they said it was not a compromise, but the reason for that was that the Gallagher case shows clearly that the judge was asked to evaluate damages, this was only issue before him.

In our case that's the one thing he wasn't asked to do.

There were nine paragraphs of error with reference to that jury trial but he was not asked to evaluate damages and it's apparent that if there was liability in that case, it was worth a lot more than $19,000.

A 49-year old man earning $5000 a year just compute that with his normal work expectancy 11 to 15 years plus medical cost plus pain and suffering plus all the personal elements of our laws of conception.

On its face it is not an evaluation of maximum damages.

Now they didn't want to retry that case, there was a simple remedy, for the employer is to be considered -- had pretrial on this case.

Give us an opportunity to retry it and let us go for the big judgment.

We could have gone maybe for a $100,000 because the death limitation in Illinois has been under attack and I think if the statute intends that the employer have that right.

They deprived themselves of that right and therefore it cannot proceed in the second compensation hearing.

Chief Justice Earl Warren: Pardon me, you have some time left.

Rebuttal of Harold A. Liebenson

Mr. Harold A. Liebenson: No Your Honor --

Chief Justice Earl Warren: Yes, no but that's all right.

Mr. Harold A. Liebenson: There is nothing further I think I have --

Chief Justice Earl Warren: Nothing further to add very well.