Schlesselman v. Travelers Insurance

112 Neb. 332 | Neb. | 1924

Thompson, J.

We considered this case October 20, 1923, and remanded’ the same with special instruction, reported in 111 Neb. 65, to which we refer for statement of facts. For consideration of the questions here presented, it is sufficient to say that the injuries complained of are alleged to have been caused by scalding water, burning different parts of the plaintiff’s body, especially the legs. On December 27, 1923,. on the evidence previously introduced and additional evidence then received, the court found: “That the damaged condition of the cuticle and tissues of substantial areas of the plaintiff’s left shoulder, arm, and leg, and practically all the right leg from below the ankle to the region of the knee, collectively impedes circulation of the blood, causing numbness in both feet, fatigue, and weakness of body generally, rendering plaintiff unable to perform ordinary labor.

“That from June 6, 1923, by reason of said accident, plaintiff was permanently partially disabled to the extent of one-half of his ability to do ordinary labor, and that he is entitled to recover for 32 weeks from said date compensation at the rate of $7.50 a week, aggregating $240; that the defendant, in addition to all prior amounts due, has paid plaintiff from the 6th day of June, 1923, the sum of $405, which is $165 more than is now due, and has thereby paid in full until the 29th day of May, 1924.

“That plaintiff is entitled to recover from and after said last-named date, to be paid weekly, the sum of $7.50 a week during the remainder of his life, and to recover his costs other than $14.40 taxed by the supreme court.”

In addition to the presumption in favor of the finding of the trier of fact, the evidence amply sustains the judgment of the trial court, that the plaintiff has suffered a 50 per cent, permanent partial disability to his legs. In accordance with subdivision 3, sec. 3044, Comp. St. 1922, as construed’, in Frost v. United States Fidelity & Guaranty Co., 109 Neb. 161, and Johnson v. David Cole Creamery Co., 109 Neb. 707, plaintiff was entitled to recover such proportion of the compensation allowed for total disability under subdivision 1 of this section as the extent of his loss would bear to the total loss of such members. At the time of injury plaintiff’s wage was $27 a week. Thus it will be seen that he should have been awarded 50 per cent, of 66 2-3 per cent, of $27, or $9 a week, for a period of 300 weeks, and 50 per cent, of 45 per cent, of $27, or $6,071/2 a week, thereafter, for the remainder of his life.

Since plaintiff has not filed a cross-appeal, and the case cannot be tried here de novo, he must be content with the $7.50 a week, awarded by the trial court, for a period of 300 weeks from the date of the injury, and the sum of $6,071/2 a week thereafter, during the remainder of his natural life. The Travelers Insurance Company should be credited with any and all amounts heretofore paid to Schlesselman.

It is therefore ordered that the judgment of the district court be modified to the extent of awarding plaintiff $6.07V2 a week for the remainder of his life, from and after the expiration of the 300 weeks, in lieu of $7.50, and for that purpose the case is modified, and remanded, with directions.

Modified, and remanded, with directions.

Note — See Workmen’s Compensation Act, p. 96, sec. 87.