109 Neb. 506 | Neb. | 1922
Lead Opinion
This was an action by the plaintiff, an employee of the defendant Cudahy Packing Company, to recover damages for personal injuries sustained as the result of the alleged negligence of the defendant company in failing to guard certain machinery housed in its plant. It is not questioned but that the accident arose out of and in the course of the plaintiff’s employment. The defense was that the plaintiff, as an employee who had not formally rejected the compensation law, came within its provisions, and that its remedies were exclusive as against any suit for damages against the employer, based on negligence for failure to comply with the factory act. The trial court entered judgment in favor of the defendant, and the plaintiff brings this appeal.
By the provisions of the factory act (Comp. St. 1922, secs. 7690, 7699), every person operating a plant where machinery is used is required to provide guards or
It is the plaintiff’s contention that the factory acc gives a specific right to damages, not affected by the compensation law; that the two acts are not inconsistent, but, if found to be inconsistent, the factory act, by the amendments and reenactment in 1919, was intended by the legislature, to the extent of the provisions embodied in the act, to work an implied repeal of provisions in the compensation law inconsistent therewith.
The two laws are not inconsistent, though they could not, obviously, be applied at the same time to a given case. Either the factory act or the compensation law must govern. The compensation law is not a compulsory law but is elective. It was enacted at a time when questions were being raised against compulsory compensation laws, that to require the employer to pay compensation for accidents happening to his employees where he was not at fault was taking his property without due process of law. Some of the courts sustained these objections to compulsory compensation acts and held, on that ground, that they were unconstitutional. Ives v. South Buffalo R. Co., 201 N. Y. 271, 34 L. R. A. n. s. 162. The elective law was based upon another theory. It erected a statutory contract between all employers and employees, falling within its terms, who should not affirmatively, in a specified manner, reject the provisions of the act. By a failure to act the parties were presumed to have elected to come within the act and to have contracted with reference to it. The obligations, then, of the employer towards the .employee,
That the compensation law was intended to govern exclusively the matter of compensation for injuries received by employees in the employment covered by the act is shown by its express terms. It provides that by the election of the parties to come under the act they shall be held to have surrendered their rights “to any other method, form or amount of compensation or determination thereof than” that which is provided by the workmen’s compensation schedule of awards. Comp. St. 1922, sec. 3034.
A case involving a very similar question to the one presented here is Hilsinger v. Zimmerman Steel Co., 193 Ia. 708. That was a case where a general statute gave to a parent the express right to recover damages for injury to his minor son growing out of the negligence of such son’s employer. The question wqs whether or not the compensation act affected the parent’s rights under the general law. The court said: “The argument for the appellant is that the workmen’s compensation act did not in terms repeal section 3471, and that its terms are not so repugnant to section 3471 that a repeal by implication should be found. To our minds, the question involved is not so much whether section 3471 has been repealed by implication, but whether the field of its application has 'been circumscribed or reduced by the operation of the compensation act. Assuming that, the purpose of the compensation act was to cover the entire field of liability for industrial injury, section 3471 could still be operative outside of that field.” The court in that case held that the minor employee, 18 years of age, came under the provisions of the compensation act, since he had not expressly rejected it, and that the remedies provided by that act were exclusive of any remedy to the parent under the general statute for damages.
So it can be said, here: The factory act is still operative, unaffected by the compensation law, as to all employees who do not come within the provisions of the
Plaintiff argues that the failure to guard machinery, in violation of the factory act, is wilful negligence on the part of the employer, and claims, where injury results from such conduct, that the occurrence does not constitute an accident, within the meaning of the compensation law. In the case of McCarthy v. Village of Ravenna, 99 Neb. 674, such a violation was held to constitute gross negligence.
The plaintiff lays particular stress upon the decision in Adams v. Iten Biscuit Co., 63 Okla. 52, where the court, in passing upon the general constitutionality of a workmen’s compensation law, declared. “A wilful or intentional injury, whether inflicted by the employer or employee, could not be considered accidental and therefore is not covered by the act.” The facts in that case, however, did not show anything but ordinary negligence on the part of the employer, so that the statement of 'the court was only general, not being applied to any particular state of facts. There is a distinction between an employer causing a wilful or intentional injury, and being guilty of wilful or gross negligence, which negligence results in an injury, and we take it that the court, in making the general statement, had in mind that distinction. An employer could not, of course, be protected by the provisions of the compensation act where he intentionally inflicts an injury upon an employee. Such an injury could hardly be said to be one which would be incidental to the employment, or one which would arise from the operation of the employer’s business.
It is argued, since the plaintiff in this case was a minor, being of the age of 19 years, and since an employee is. brought under the provisions of the compensation law in a manner which is contractual, that the minor’s contract, being a voidable one only, is not binding upon him,' and 'that he may elect at. any time whether to be bound by the provisions of the law or to resort to other statutory oh common-law remedies outside of the compensation law. In one case Moore v. Hoyt, 116 Atl. (N. H.) 29, such has been held to be true. That question, however, must be controlled largely by the particular terms of the Nebraska statute. That the statute was intended to cover minor employees, who are legally permitted to work, is shown by its provisions. By the statute (Comp. St. 1922, sec. 3038) the term “employee” is defined to cover: “Every person in the service of an employer, including minors who are legally permitted to work- under the laws of the state.” And section 3055, Comp. St. 1922, provides, in- case of an injury to a minor, when any right or privilege accrues to him under the act, he may. institute a proceeding through his guardian or next friend.
Where a minor is employed who is under the age at which minors are legally allowed to be employed under
Our conclusion is that the plaintiff in this case not only came within the provisions of the workmen’s compensation law and that he was bound thereby, but that the remedies afforded him under that law were exclusive of his right to bring an action for damages-based upon the provisions of the factory act.
The judgment of the trial court is therefore
Affirmed.
The following opinion on motion for rehearing was filed May 26, 1923. Rehearing denied.
Rehearing
The question involved being of much importance, argument was allowed, and has been had, upon a motion for rehearing. The former opinion is reported, ante, p. 506.
In England, where the injury was caused by the personal negligence or wilful act of the employer, or some person for whose default the employer is liable, the employee may, at his option, either claim compensation or sue for.damages, and if within the time limited in the compensation law the employee bring an action to recover damages, and it is determined that the employer is not liable in such action, but that he would have been liable to pay the compensation, the action shall be dismissed, but the court may proceed to assess such compensation, and may deduct therefrom the costs caused by the plaintiff suing for damages. Eng. St., 6 Edw. VII, ch. 58; Workmen’s Compensation Appeals (Eng.) 1912, 1913, pp. 29, 31. In Illinois the statute expressly provides: “When the injury to the employee was caused by the intentional omission of the employer to comply with statutory safety regulations, nothing in this act shall affect the civil liability of the employer.”. Ann. St. Ill. 1913, sec. 5151. In Wisconsin and other states increased compensation is provided for. Cases having a bearing on the question involved are: Knoll v. Shaler, 192 N. W. (Wis.) 399; Smith v. Western States Portland Cement Co., 91 Kan. 501; Helme v. Great Western Milling Co., 13 Cal. App. 116; Patten v. Aluminum Castings Co., 105 Ohio St. 1; Toledo Cooker Co. v. Sniegowski, 105 Ohio St. 161.
By failing to signify his election not to come under the provisions of the compensation act, the employee surrenders his right “to any other method, form or amount of compensation, or determination■ thereof, than as provided in part II of this article.” Comp. St. 1922, sec. 3031.
The reenactment of the factory act, slightly changed,,
Motion for rehearing
Overruled.