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 accidental
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.
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
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:
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 "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
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
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.
By attaching too much importance to certain random remarks made by three important public officers of the City of New York and by according those men too little credit for responsible and conscientious performance of their official duties, a majority of this court is holding that the board of estimate abandoned its duty and denied petitioner's application without considering the evidence bearing on the matter. The record may not be read to support such a conclusion.
This is not the first time, it is worthy of note, that the board of estimate denied petitioner's application after a hearing. After the application had been twice denied by the medical board of the city's retirement system — which first considers the claim in this sort of case — it came before the board of estimate in February of 1949. The board denied the application at that time — according to the sworn statement of its various members — after having "considered all the facts and evidence upon which the Medical Board acted". Petitioner then requested, and the board ordered, a hearing before a trial committee, which heard, sifted and analyzed 121 pages of testimony, found that Kilgus had been drunk while at work and that he was guilty of willful negligence, and recommended that the application be denied. The matter then came before the board for a second hearing, the one now under attack.
That Kilgus had partaken of a quantity of alcohol on the fatal night, in violation of regulations, there can be little doubt. In the course of the extensive medical testimony taken at the trial committee's hearings, Dr. Alexander O. Gettler, a toxicologist in the city medical examiner's office, who is recognized as an outstanding expert, testified that chemical analysis
There was contending testimony, on petitioner's behalf, also by an expert, to the effect that 3-plus alcohol in the liver does not necessarily indicate intoxication since the amount of alcohol in the brain might be less than that in the liver. Other witnesses, who had seen Kilgus that night — though none later than an hour and a half before he was found lying upon the subway's third rail — testified that when they saw him he did not stagger or speak incoherently or smell of alcohol. Relying on the evidence adduced in her support, petitioner argues here, as she did before the board, that the rules only forbade excessive drinking, and that it was not shown that her husband had imbibed more than moderately. In addition, she objected to the admission of Dr. Gettler's testimony concerning the amount of alcohol in the deceased's liver, on the ground that the liver had not been properly identified as Kilgus' and that the doctor's position in the office of the city medical examiner disqualified him from testifying.
As indicated, the essence of petitioner's case on the merits was presented, and forcefully and fully, with an extensive discussion of the evidence on which it rested, in the oral argument of petitioner's counsel at the hearing before the board. Moreover, and this is of the utmost significance, each member of the board had been given, some months prior to this hearing, not only a résumé of the testimony before the trial committee, but also the full stenographic transcript of that evidence and all the exhibits. In the verified answer, it is explicitly and categorically asserted — and these statements stand undenied — that the board "examined petitioner's application, the proofs, testimony and exhibits, the reports of the Medical Board, and the report, findings and recommendation of the Trial Committee", and that the board's determination denying the application "was [its] considered judgment * * * rendered in
In the face of this procedure and these sworn recitals, I do not understand, as I above observed, how it may be said, with any basis or warrant, that the board did not consider the evidence or that its members abdicated their decisional duty and simply rubber-stamped the determination previously made by the trial committee.
Once it appears that a transcript of the record containing the testimony and evidence adduced before the hearing officer had been submitted to the administrative agency making the determination, the question whether or not the latter actually considered the evidence and the contentions of the parties is normally not a matter for judicial scrutiny. (See, e.g., Matter of Weekes v. O'Connell, 304 N.Y. 259, 265; Matter of Joyce v. Bruckman, 257 App. Div. 795, 798; United States v. Morgan, 313 U.S. 409, 422; Willapoint Oysters v. Ewing, 174 F.2d 676, 696, certiorari denied 338 U.S. 860; National Labor Relations Bd. v. Jasper Chair Co., 138 F.2d 756, certiorari denied 321 U.S. 777; Norris & Hirschberg v. Securities & Exch. Comm., 163 F.2d 689, 693.) The administrative action has "a quality resembling that of a judicial proceeding" (Morgan v. United States, 298 U.S. 468, 480), and 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; see, also, United States v. Morgan, supra, 313 U.S. 409, 422). Accordingly, absent an express admission that the record has not been read (see Matter of Joyce v. Bruckman, supra, 257 App. Div. 795), it must be presumed that the evidence has been studied to the extent necessary to reach an informed and independent judgment. We recently said as much in the Weekes case (304 N.Y. 259, 265):
No extended argument or elaboration is necessary to establish that it would be destructive of administrative responsibility to require the deciding officer to take the stand and testify as to the extent to which he read the record, the degree of reliance he placed upon his associates' and subordinates' summaries and reports, and whether or not he read the briefs submitted to him by the parties. Where such an inquiry is sought by a party against whom a quasi-judicial determination has been made, the courts, as a matter of sound policy, will refuse to undertake it. (See United States v. Morgan, supra, 313 U.S. 409, 422; Norris & Hirschberg v. Securities & Exch. Comm., supra, 163 F.2d 689, 693; National Labor Relations Bd. v. Baldwin Locomotive Works, 128 F.2d 39.) Similarly, upon judicial review of administrative determinations, "where the Board declares that it has considered `the entire record in the case,' it cannot be said that the Board did not consider the evidence, and we must accord its decision the presumption of regularity to which it is entitled". (National Labor Relations Bd. v. Jasper Chair Co., supra, 138 F.2d 756, 758, certiorari denied 321 U.S. 777.)
The two cases relied upon by the majority, Matter of Daley v. Board of Estimate of City of N. Y. (267 App. Div. 592), and Matter of Weekes v. O'Connell (supra, 304 N.Y. 259), do not derogate in any way from these principles, nor do they afford any support for what is now being decided. In neither of them did the administrative agency have before it a transcript of the evidence upon which its decision purportedly rested. In Daley, the court stated that "none of the sworn statements" supporting petitioner's claim "was placed before the Board of Estimate" (267 App. Div. 592, 597); indeed, it was explicitly noted, the medical board "withheld the facts upon which its recommendation was based", setting forth only its conclusions, and the board of estimate "simply accepted those conclusions" (p. 598). And the procedure in the Weekes case was even more egregious: the order of the State Liquor Authority was made one hour after its hearing commissioner had concluded his hearings, was predicated on findings and conclusions identical with those of the subordinate officer and, concededly, was made
In point of fact, it is our decision in Weekes, resting as it does on the absence of a record before the deciding body, that most strongly points the error of appellant's position. We there wrote that "The mere availability of such a record tends to guarantee independent and informed appraisal of the proofs and of the contentions of the parties" (304 N. Y., at p. 266). And, beyond that, the court was careful to point out that, where a transcript of the evidence taken by the hearing officer was made available, "we do not inquire into the degree of reliance placed * * * upon such internal assistance", for "the extent to which independent study" of the record is necessary "must be left to the wisdom and practical good sense of the commissioners themselves" (p. 265).
Even if we were to disregard the presumption of regularity, and even if we were to attach no weight to the sworn statement of the members of the board of estimate that they fully considered the record, an examination of what transpired at the hearing serves to afford still stronger basis for sustaining its action. The transcript of that hearing, covering 22 closely typewritten pages, demonstrates that every bit of important evidence was fully presented through the extensive oral arguments of their respective counsel. As must be manifest, where virtually everything embodied in the record before the trial committee has been presented orally to the deciding agency — and that was not the case in either Weekes or Daley — a petitioner may not be heard to claim that the agency failed to make an independent value judgment. (See National Labor Relations Bd. v. Lane Cotton Mills Co., 108 F.2d 568; cf. Morgan v. United States, supra, 304 U.S. 1, 18; Owens v. Battenfield, 33 F.2d 753, certiorari denied 280 U.S. 605.)
Consequently, to rule that the board failed in its duty and merely espoused the conclusions of its committee, a court must presume, not only that the members of the board failed to examine the record, but also that they closed their ears to the oral presentation of the evidence and its analysis by counsel. Quite obviously, nothing of the sort occurred. The transcript
However, I go even further. Even if it were proper for us to "probe the mental processes" of the board and its members, the excerpts from the colloquy quoted in the majority opinion would furnish no warrant for the court's decision.
There is no claim that any one of the three officers, from whose remarks the opinion quotes (pp. 625-626), acknowledged or even intimated that he had failed to consider the transcript of the testimony taken before the trial committee. As a matter of fact, only one of the board members, the President of the Borough of Manhattan, had not examined the record, and he explicitly noted the fact, announcing that, since he would first like to examine it, "I will refrain from voting." His action is highly enlightening, for it indicates precisely how a responsible official would conduct himself had he not considered the record; and, I suggest, it is exactly what his associates would have done had they been in a position similar to his.
In no sense does the record indicate that any member of the board who voted on the petitioner's application neglected to exercise an informed and independent judgment. The three quoted excerpts are at best ambiguous and cannot be properly assessed unless considered in the context of the entire hearing. For example, as to the second item (supra, p. 626), it is plain that that official was merely seeking to point out, and correctly, that, insofar as a conflict in the testimony and the credibility of witnesses were concerned, the trial committee's appraisal and evaluation, entitled as they were to weight, should be preferred, and that, insofar as questions were posed involving the admissibility of evidence, it was better that they be passed upon, as questions of law, by the court.
In any event, insofar as any of the remarks quoted in the majority opinion appear to place undue reliance on the views of the trial committee or on subsequent court review, they merely reflect one side of a thorough and thoughtful interchange of views concerning the nature of the board's function and the scope of court review. Thus, the transcript reveals that counsel for both parties, as well as the board members, addressed themselves to the board's duty of independent decision at some length, with an extensive and illuminating analysis of the Daley case. The quotations represent only the more ineptly phrased or
From all the discussion there unquestionably emerged a fair and correct picture of the board's proper part and function. Under these circumstances, I would say, as did a federal Court of Appeals, "We have neither moral nor legal right to presume that only those who occupy judicial office respect their obligations and perform their official duties honestly, sincerely and conscientiously." (Willapoint Oysters v. Ewing, supra, 174 F.2d 676, 696, certiorari denied 338 U.S. 860.)
Beyond all this, the court's present decision cannot help but have a tendency to discourage the kind of thoughtful inquiry and frank colloquy that here occurred, lest something be said in the course of discussion and debate that may be taken to indicate that the agency misunderstood its function or abdicated its duty.
In sum, then, since the evidence establishing that Kilgus had been intoxicated and that his death was caused by his own willful negligence was exceedingly strong, and since no justification exists for a ruling that the board of estimate rubber-stamped the trial committee's decision, its determination, unanimously affirmed by the Appellate Division, should be upheld.
Order reversed, etc.