99 Neb. 321 | Neb. | 1916
While the plaintiff was in the employ of the defendant, another employee of the defendant threw a small stick, which struck the plaintiff in the eye. The plaintiff brought this action in the district court for Douglas county to recover compensation nnder the employers’ liability act. The trial conrt found in plaintiff’s favor, and defendant has appealed.
The defendant presents two questions for consideration, and contends: First, that the findings of the court that the accident arose out of plaintiff’s employment is not ¡supported by the evidence; second, that the court erred in finding that the plaintiff is entitled to have his weekly compensation payments commuted to one lump sum payment, and the court erred in entering judgment for the plaintiff for a lump sum. These are important questions under this statute. Section 3650, Rev. St. 1913, provides: “If both employer and employee become subject to part II of this article, both shall be bound by the schedule of compensation herein provided, which compensation shall be
The parties cite other authorities in the briefs establishing this rule. In this case clearly the plaintiff was not doing ''something entirely foreign to the work which he is employed to do.” He did not leave his wagon; the team was not stopped; he continued his regular employment. If he resisted the advances of Brown and attempted to force him from the wagon, there is no evidence whatever that plaintiff did anything to encourage Brown to continue his performances. There is no doubt, under the many authorities cited by both parties, that if the workman abandons his employment, even for a short time, and engages in play, or some occupation entirely foreign to his employment, he is not entitled to compensation for an accident by which he is injured while so doing. It would seem also to be clear that, even if he does not abandon his employment, and even while engaged in the performance of his duty, if he' does some act or thing not connected with his employment, which was intended to and probably did provoke an assault or retaliation, he would not be entitled to compensation for an injury the result of an accident so caused by himself. It is difficult to determine from this evidence whether the plaintiff made any motion at or toward striking Brown with his lines, and if he did it was in direct connection with Brown’s interference with him, and may reasonably be said to be a part of that transaction.
There is evidence in the record that the defendant’s employees were accustomed to join in what they called
Such rule would perhaps not he unjust in its general application. The question is whether our statute can be so construed. The language of the statute is identical with the earlier statute of England, which was adopted also by some of our states. It had been many times construed by the English courts before it was adopted by our legislature. Under such circumstances, the courts always consider that, if the legislature was not satisfied with the construction which had been given to language adopted from another jurisdiction, the language adopted would have been so guarded in the statute adopting it as to make the intention of the legislature clear. In other words, as it is generally stated, when a statute of another jurisdiction is adopted, its known construction and meaning in the jurisdiction of its origin is axlopted also, unless a contrary intention is
Did the court err in entering judgment for the plaintiff in a “lump sum”? The following sections of the Revised Statutes of 1913 appear to bear upon this question:
“Except as hereinafter provided, all amounts of compensation payable under the provisions of this article shall be payable periodically in accordance with the methods of payment of the wages of the employee at the time of his injury or death.” Section 3666.
“The interested parties shall have the right to settle all matters of compensation between themselves in accordance with the provisions of this article.” Section 3677.
“The amounts of compensation payable periodically under the law, either by agreement of the parties, or by decision of the court, may be commuted to one or more lump sum payments, except compensation due for death and permanent disability. These may be commuted only with the consent of the district court.” Section 3681.
This court had occasion to consider one phase of this question in the recent case of Bailey v. United States Fidelity & Guaranty Co., ante, p. 109. In that case the employer and the workman had agreed upon such commutation and
The judgment of the district court is reversed and the cause remanded.
Reversed.