Second, the Government contends that, even if the court was correct in applying District of Columbia law, it misapplied the relevant law to the facts of this case. The clearly erroneous standard of review applies to findings of negligence. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Daniels v. Hadley Memorial Hospital, 566 F.2d 749, 756 n. 49 (D.C. Cir. 1977); Socash v. Addison Crane Co., 346 F.2d 420 (D.C. Cir. 1965) (per curiam). See generally 9 C. Wright A. Miller, Federal Practice and Procedure § 2590 (1971).
Findings regarding negligence and causation are deemed questions of fact for purposes of review and are to be tested by the clearly erroneous standard. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 346 F.2d 420 (1965). See generally 9 C. Wright A. Miller, Federal Practice and Procedure § 2590.
The Court found that the taxpayer has failed to carry its burden of proving that the compensation paid was reasonable. Although the bulk of the evidence was offered by the taxpayer, we find that there was substantial proof to support the finding and conclusion of the trier of fact. Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 346 F.2d 420, 421; West v. H. K. Ferguson, 382 F.2d 630, 632 (10th Cir.). We cannot say the Tax Court was clearly in error in finding that the compensation paid to Mrs. Joscelyn in 1968, 1969 and 1970 was unreasonable insofar as it exceeded the amounts of $50,000, $54,500 and $57,500, respectively.
Although we presently have no occasion to review the correctness of the Hicks decision, we note that seven circuits have taken positions contrary to that decision and have held the clearly erroneous standard applicable to the finding or conclusion of negligence. Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 346 F.2d 420 (1965); Obolensky v. Saldana Schmier, 409 F.2d 52 (1st Cir. 1969); Nelson v. Jacksonville Shipyards, Inc., 440 F.2d 668 (5th Cir. 1971); J. A. Jones Const. Co. v. Englert Eng. Co., 438 F.2d 3 (6th Cir. 1971); Leatherman v. Gateway Transportation Co., 331 F.2d 241 (7th Cir. 1964); Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir. 1969); Sines v. United States, 430 F.2d 644 (9th Cir. 1970); United States v. Sommers, 351 F.2d 354 (10th Cir. 1965). Even the Second Circuit seems to have retreated from Mamiye Bros. v. Barber S. S. Lines, Inc., 360 F.2d 774 (2 Cir., 1966), a case which most clearly stated the minority point of view and upon which the Hicks case relied.
Bellevue Gardens, Inc. v. Hill, 111 U.S.App.D.C. 343, 345, 297 F.2d 185, 187 (1961); Obolensky v. Saldana Schmier, 409 F.2d 52, 54 (1st Cir. 1969); Watson v. Joshua Hendy Corp., 245 F.2d 463, 464 (2d Cir. 1957); R. M. Palmer Co. v. Luden's Inc., 236 F.2d 496, 498 (3d Cir. 1956). Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. E. I. du Pont de Nemours Co., 351 U.S. 377, 381, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 309, 346 F.2d 420, 421 (1965); Lichter v. Goss, 232 F.2d 715, 719 (7th Cir. 1956). Zenith Radio Corp. v. Hazeltine Research, Inc., supra note 31, 395 U.S. at 123, 89 S.Ct. 1562, 23 L.Ed.2d 129; United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); B's Co. v. B. P. Barber Associates, Inc., 391 F.2d 130, 132-133 (4th Cir. 1968); Neal v. Saga Shipping Co., 407 F.2d 481, 487-488 (5th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969).
It follows that the judgment of the District Court must be and is See, e.g., Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 346 F.2d 420 (1965). Affirmed.
The Second Circuit has recently held that its view in this regard is not in conflict with McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6. Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-778 (2d Cir. 1966). See, also, Socash v. Addison Crane Company, 120 U.S.App.D.C. 308, 346 F.2d 420, 422 (D.C.Cir. 1965), concurring opinion of Judge Bazelon. Apparently, most if not all of the other courts of appeals deal with the question of negligence as if it were one of fact, subject to the clearly erroneous rule.
But the analogy does not bear analysis. If the machine's defects caused the accident, the lessor would be held liable, if at all, for its own negligence. See Socash v. Addison Crane Co., 120 U.S.App. D.C. 308, 346 F.2d 420. (1965). Respondeat superior rests on a different theory: "Fault on the part of the employer has never been required as a condition of his liability."
This action was likewise tried without a jury before another Judge of this Court and terminated in favor of the defendant. The judgment was affirmed by the Court of Appeals in Socash v. Addison Crane Co., D.C. Cir., 346 F.2d 420, on the ground that the questions presented to the trial Judge were questions of fact and that his findings could not be set aside unless clearly erroneous, which they were not. The trial Judge in that case also held that the plaintiff was not entitled to recover substantial damages on the further ground that the deceased left no dependents and therefore the recovery, if any, would have been limited to the expenses of the hospitalization and burial of the deceased. Naturally, just as two juries may reach different conclusions on the same facts, so may two judges do likewise.
The "ultimate inquiry" of "appl[ying] the controlling legal standard to the historical facts," see Thompson v. Keohane , 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (internal quotation marks omitted), may well be more appropriately termed a mixed question of fact and law that we review de novo. See Socash v. Addison Crane Co. , 346 F.2d 420, 422 (D.C. Cir. 1965) (Bazelon, C.J., concurring) (internal quotation marks omitted) (opining that "ultimate determinations, such as negligence vel non, are mixed questions of law and fact freely reviewable on appeal"); cf. Miller v. United States , 14 A.3d 1094, 1121-23 (D.C. 2011) (concluding that the trial court's determination of whether evidence was suppressed for Brady purposes involved the "legal consequences of the undisputed historical facts" and so was not entitled to appellate deference). But we need not divert our attention to that question in this case because we conclude that the remand court's determination of less-than-gross negligence on this record was clearly erroneous.