Morris & Co. v. Cushing

103 Neb. 481 | Neb. | 1919

Morrissey, C. J.

Action under sections 3642-3696, Rev. St. 1913, as amended by chapter 85, Laws 1917, known as the “Workmen’s Compensation Law.”

Michael Francis Cushing, a boy of 16, while employed as a common laborer in and about the packing plant of Morris & Company, suffered the loss of four fingers. He made application for compensation under the statute. The employer denied liability, Avhereupon Cushing, filed a petition with the compensation commissioner, as provided in section 15, ch. 85, Laws 1917. On hearing, the compensation commissioner awarded the employee compensation at the rate of $10 a week for 100 weeks. Morris & Company instituted this proceeding, which is in the nature of an appeal from the order of the compensation commissioner, in the district court. Under thé peculiar provisions of the statute the titles of the parties are transposed, Morris & Company being designated as plaintiff and Cushing being designated as defendant. From a judgment in favor of defendant, Morris & Company has prosecuted an appeal to this court, where the parties retain the same titles they had in the district court.

The employment and the injury are admitted. There is no complaint as to the amount awarded, provided defendant is entitled to any award. Plaintiff alleges, however, that Cushing had departed from the line and scope of his employment, and that his accident was not one arising out of and in the course of his employment.

In April, 1917, Cushing was employed by one of plaintiff’s foremen, who, when a witness for plaintiff, gave the boy’s duties as follows: “His duties were to carry the boards from the saw, and carry boards from the printing press, and when there would not be any work of that kind to do he was supposed to truck boxes to the various departments and handle lumber and sweep up the floor, in fact, do anything in the line of common labor around the shop.” The boy continued in this line of employment until the day of the injury. On that morning he was directed to assist in unloading a car of lumber that was to be used in the box department where the boy worked. He remained during the forenoon at that task, In the noon hour he ate his luncheon in the box factory. When the hour arrived for the men to resume work, he was met by a laborer from the cooper’s shop, who said he would like to have defendant cut some hoops for him. Defendant consented to do this work, and testifies: “I thought if he needed the hoops and wanted to get the barrels out right away, I would saw them.” He took a coil of hoops, went into the box factory where he was generally employed, and began to cut the hoops with a hatchet. While he was thus employed, Mr. McCleary, the foreman in the oleomargarine' department, came into the room and stated that he wanted a box. There is some discrepancy in the testimony of defendant, the foreman, and the elevator operator, who was present, but it appears that this foreman made it known that he needed a box and inquired if he could have one made. The elevator operator testifies that he suggested that defendant might make one; that defendant consented, and began work on the box. During defendant’s employment, a considerable portion oJt his time had been taken up in carting boxes away from a circular saw which was in use in the factory and generally operated by a “straw boss” named Altman. Defendant now undertook to operate this saw in order to prepare boards for the box. While thus engaged, his hand came in contact with the saw and he suffered the injury for which recovery is sought.

Plaintiff contends that defendant was not acting within the scope of his employment in undertaking to make the boxes; that he had no right to undertake the operation of the saw; and that, had he followed the instructions of his foreman, he would then have been engaged in unloading lumber from the ear. Defendant testifies that on one or two other occasions he had used the saw under instructions from Altman, and his testimony in this respect is not disputed. The record shows that he was subject to the orders of different foremen. These several foremen may have differed in rank, but defendant had during his employment taken orders from each of them-. He was only a boy of immature' years. As shown by the quoted testimony of the foreman who employed him, it was his duty to “do anything in the line of common labor around the shop.” This being true, he cannot be held to strict accountability- for his acts. Accustomed as he was to take orders first from one foreman and then from another, when the foreman of the oleomargarine department signified his desire that defendant make a box, he might well assume that it was his duty to obey, and that that order countermanded the order given by the other foreman earlier in the day to assist in unloading the car of lumber. It is clear that he was engaged about the premises where his services required his presence, during proper' hours of service, and that Ms labor was calculated to promote tbe master’s busi ness. He had theretofore used the saw under the eye-, if not under the direction, of his immediate foreman, Altman, and at the time the accident occurred he was carrying out the order, implied, if not directly expressed, of one of plaintiff’s foremen, who stood watching him as he worked.

The evidence sustains the finding of the district court, and the judgment is

Affirmed.

Sedgwick and Cornish, JJ., not sitting.