106 Neb. 403 | Neb. | 1921
This suit originated in the compensation commissioner’s office, where Willaim Kirkpatrick, defendant, filed an application for an order against Charles Derr, his em
The district court found that defendant’s disability began April 10, 1920, and that “the duration of such disability cannot now be determined.” The court thereupon rendered a judgment against plaintiffs compelling them to pay defendant $15 a week from February 3, 1921, “until said disability be ended or determined.” Plaintiffs having failed to reduce the amount of the commissioner’s award, the court allowed defendant $50 as an attorney fee. From the judgment so rendered plaintiffs appealed.
Kirkpatrick testified in substance: That the accident happened April 10, 1920, when under Derr’s direction he went with a fellow employee to a private residence in
Mr. Turner is the man who helped Kirkpatrick to carry the base-burner from the dining room and load it on the truck. He testified that it weighed about 600 pounds. His testimony corroborates generally that of the defendant. He said: “Q. Do you know what is the usual thing for truck or teamsters to- pick those things up by hand or to drag it on a truck? A. If we have got sidewalk or flooring you take a truck and haul them, but if you have nothing but ground you cannot wheel the trucks; you have simply got to pick it up and carry it. * * * .Q. Now, when you got this stove out to the truck, did
Plaintiffs argue that the accident never happened. There is also some argument to the effect that defendant’s ■condition arose from an abnormal condition of his teeth and that he was afflicted with pyorrhea. Defendant called ■a dentist on this point, and from his testimony it appears that the condition of his teeth was not abnormal and that there was but a trace of pyorrhea, “in the first stages,” ,and that it was not sufficient to injuriously affect his ,health; that two of his large molars were decayed and ¿removed. We conclude that plaintiffs’ argument on this ,point is not sustained.
Only two witnesses testified on the part of plaintiffs and both were physicians. They did not examine defendant until about seven months after the accident. Plaintiffs in their brief say: “The medical testimony is conflicting.” ,We do not find that it conflicts at all points; but, even ad-
Plaintiffs contend that the court erred in not granting a new trial on their motion. In Bruner Co. v. Fidelity & Casualty Co., 101 Neb. 825, we held: “The granting of a new trial is largely committed to the discretion of the trial court, and unless a clear abuse has been shown this court will not interfere.” Abuse of discretion has not been shown. Error does not appear in the ruling.
It is argued that the district court erred in allowing defendant an attorney fee of $50 for services in that court. We do not think so, in view of the fact that the employer appealed and failed to obtain any reduction in the amount of the award. Section 3666, Rev. St. 1913, as amended, section 4, ch. 91> Laws 1919, provides that, whenever “proceedings are had before the compensation commissioner, a reasonable attorney’s fee shall be allowed the employee by the court in the event the employer appeals from the .award of the commissioner and fails to obtain any reduction in the amount of such award; the appellate court shall in like manner allow the plaintiff a reasonable sum as attorney’s fees for the appellate proceedings.” Under .the act defendant’s counsel is entitled to a fee of $100 for his services in this court and this amount is ordered to be paid by plaintiffs.
From the facts before us we conclude that defendant is entitled to compensation at the- rate of $15 a week from the time the court found that plaintiffs ceased paying compensation, namely, from February 3, 1921. We hold, however, that the record discloses such reasonable grounds for controversy that the appeal was justified. It there
Tbe judgment of the district court is
Affirmed.