112 Neb. 432 | Neb. | 1924
This is an action under the workmen’s compensation law. The plaintiff, Fred J. Morgan, recovered an award before the compensation commissioner, which was confirmed on appeal to the district court for Lancaster county and a decree entered in favor of plaintiff. The defendant, Nebraska National Guard, has appealed to this court.
The facts out of which the controversy arises are substantially as follows: An encampment of the Nebraska National Guard was to be held in August, 1923, at grounds furnished for that purpose by the United States government near the city of Ashland, in Saunders county. It was necessary to prepare the grounds for such encamp
Three propositions are presented by the state as reasons for reversal of the judgment:
1. It is contended that Morgan was not an employee of the state of Nebraska. The statute defines such employee as: “Every person in the service of the state or any governmental agency created by it, under any appointment or contract of hire, express or implied, oral or written.” Comp. St. 1922, sec. 3038, subd. 1. The argument here is that the Nebraska National Guard is a part of the army of the
We are clearly of the opinion that, in the preparation for and holding of the annual encampment, the Nebraska National Guard was a governmental agency of the state within the meaning of section 3038, subd. 1, and that plaintiff was an employee thereof at the time of the accident. While the Nebraska National Guard is subject to the call of the federal government and thereupon becomes a part of the national army, until so called it is essentially a state institution, subject to the call of the governor as commander in chief for military service within the state in time of war, invasions, riots, rebellion, insurrection, or reasonable apprehension thereof (Comp. St. 1922, sec. 3322), and is a state governmental agency.
2. It is next contended that Morgan’s employment was merely casual, and not in the usual course of the business, profession or occupation of the National Guard. Section 3038, subd. 3, of the statutes is as follows: “It (employee) shall not be construed to include any person whose employ-'
3. Lastly, it is contended that the evidence is insufficient to sustain the finding that the applicant’s injuries resulted
We find no error in the record, and the judgment is
Affirmed.
Note — See Workmen’s Compensation Acts, p. 48, sec. 39; p. 51, sec. 43; p. 115, sec. 114.