294 N.W. 389 | Neb. | 1940
This is an action under the workmen’s compensation law. The district court, after trial and upon evidence adduced before it, found generally for the employee, John J. Casaubon, and against the employer, the city of Omaha; and further found specially that on or about the 10th day of March, 1939, John J. Casaubon was employed by the city of Omaha as a janitor and utility man at the City Emergency Hospital, and at that time, while so employed and engaged in the performance of his duties as such employee, he sustained and received an injury, when a ladder on which he was then standing, some nine feet from the floor painting a wall of the hospital, fell away and out from under him, precipitating him head first over and down against this wall on which he was working and down to and upon a metal trash can situated in the vicinity of the bottom of the ladder; that
We are unable to accept this contention. In consideration of the evidence in the record, it will be remembered that it is sufficient to show that the injury and preexisting disease combined to produce disability, and not necessary to prove that the injury accelerated or aggravated the disease, in order to satisfy the requirement that the accident arose out of the employment. Gilcrest Lumber Co. v. Rengler, 109 Neb. 246, 190 N. W. 578.
In the instant case, however, the evidence is uncontradicted that, while an arthritic condition of complainant’s spinal column existed prior to the occurrence of the accident, it caused no pain or suffering whatever and created no noticeable impairment of the strength or use of that organ. But that after the injury claimant’s suffering and
Appellant further contends that the amount of the allowance is excessive, for the reason that, by the terms of his employment, this employee was to receive but $60 and board, lodging and washing; that the money value of the board, lodging and washing received not having been fixed by the parties at the time of hiring, it can afford no basis for the allowance of compensation. This contention involves two contentions, one of fact and one of law. The record, without contradiction, discloses the following testimony by Casaubon, viz.:
“Q. And what were your wages? A. Sixty dollars a month,
Now, there is no evidence in the record that claimant was employed by the city of Omaha for a definite term. So far as advised, Casaubon could terminate his services at his own option. But it does fairly appear from the above and the attendant circumstances that claimant accepted and relied upon the terms and conditions of his employment and the value thereof, as stated by the mayor, and continued his services on the basis thus communicated. In view of the entire situation, it may be properly inferred that claimant’s job was originally set up and created by the municipal authorities on the basis of $40 a month as the money value of the board, lodging and washing to be received by the incumbent thereof. This fact had been properly communicated to claimant prior to his injury, and by his continuance in the work he had necessarily assented to the same.
The provisions of the governing statute are as follows:
“Wherever in this article the term ‘wages’ is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others, nor shall it include board, lodging- or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring : Provided, that if the insurance carrier shall have collected a premium based upon the value of such board and lodging and similar advantages then the value thereof shall become a part of the basis of determining compensation benefits.” Comp. St. Supp. 1937, sec. 48-126.
“Were it not for the statutory limitation above quoted, there would be no doubt that the meals and lodging furnished by the employer would constitute a part of the employee’s weekly wage. It has been so held by many courts fin states where no such statute existed. Among the authorities so holding are Fowler v. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609; Haas v. Globe Indemnity Co., 16 La. App. 180; Baur v. Common Pleas of Essex, 88 N. J. Law, 128; Ciarla v. Solvay Process Co., 184 App. Div. 629, affirmed in 226 N. Y. 566. See, also, Honnold, Workmen’s Compensation, p. 574.
“It has long been the policy of this state to give a liberal construction of the workmen’s compensation law, so that its beneficent purposes might not be thwarted by technical refinement of interpretation. McGuire v. Phelan-Shirley Co., 111 Neb. 609; Baade v. Omaha Flour Mills Co., 118 Neb. 445; Speas v. Boone County, 119 Neb. 58.”
Construing the statute under consideration with liberality, in accord with the principles announced in the Geary case, we are inclined to the view, in the light of the entire situation, that the evidence as an entirety sustains the conclusion that the money value of the board, lodging and washing that claimant was receiving at the time of the infliction of his injuries had been legally fixed by the parties at $40 a month, and was to be considered in determining the amount of his compensation, and that the judgment of the trial court on this point is not subject to attack.
It follows that the judgment of the district court is correct, and it is
Affirmed.