Thompson v. Lawson/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice MINTON concur, dissenting.

Petitioner's husband, a longshoreman, was killed in 1951 on a job governed by the Longshoremen's and Harbor Workers' Compensation Act. Petitioner was not then living with her husband and had not done so since he deserted her and their two children in 1925. Petitioner went through a marriage ceremony with another man in 1940 living with him as his wife until 1949 when they were divorced. Of course this marriage was invalid and petitioner remained the wife of her husband until he was killed. The Court now holds as a matter of law that petitioner's second 'marriage' amounts to a forfeiture of her right to recover compensation under the Act as a widow. In so holding, the Court follows decisions of the Court of Appeals for the Fifth Circuit. The Courts of Appeals for the Second and Ninth Circuits have held to the contrary. I agree with the Second and Ninth Circuits.

Not a word in the Compensation Act suggests that the deserted widow of a deceased longshoreman automatically forfeits all right to statutory compensation because she has lived with a man other than her husband. What the Act actually does is to entitle a vidow to compensation if at the time of her husband's death she is either: (1) living with him; (2) dependent upon him for support; (3) living apart from him for justifiable cause; (4) living apart from him by reason of his desertion. Obviously these issues cannot be decided without hearing evidence and determining facts. The Act vests deputy commissioners, not courts, with power 'to hear and determine all questions in respect of such claim.' 33 U.S.C. § 919(a), 33 U.S.C.A. § 919(a). And their findings of fact when supported by substantial evidence are conclusive on courts.

Here there were only two factual issues presented to the Deputy Commissioner. Was the wife living apart from her husband for 'justifiable cause'? Was she living apart from him because of his 'desertion'? I think there was evidence before the Deputy Commissioner on which he could have fairly decided these questions of fact either way. He made findings and entered an order against the petitioner, but it is admitted that he did so because he felt bound by prior holdings of the Fifth Circuit that an attempted marriage by a wife barred her recovery of compensation as a matter of law. The Court now affirms the judgment although the Deputy Commissioner has never passed on the factual issues of whether the wife's living apart from her husband was either 'justifiable' or by reason of his 'desertion.' That the Court treats its holding as one of statutory construction cannot obscure the actual effect of what it is doing. The Court is taking from the deputy commissioners their congressionally granted power to determine from all the facts and circumstances whether a widow is entitled to compensation.

I would reverse with directions to remand the cause to the Deputy Commissioner to determine, free from judicial compulsion, whether, as a fact, petitioner's living apart was for 'justifiable cause' or on account of her husband's 'desertion.' If either of these issues should be decided in favor of the petitioner, she is entitled to compensation.