119 Neb. 58 | Neb. | 1929
Lead Opinion
This is an appeal by the county from a judgment in favor of Wylie C. Speas under the workmen’s compensation act.
This is the second time this case has been argued before
It was stipulated on the trial that the plaintiff was injured on the 4th of October, 1926, and by reason of the injury was unable to return to work until March 1, 1927; that the medical expenses were $139 for one doctor, $39.50 for another, and the hospital bill was $38.
The district court found that the injury arose out of and in the course of employment; that the employee was receiving wages of $3.50 a day or $21 a week and was entitled to compensation at the rate of $14 a week, or a total of $295 for himself, $178.50 for doctors, $38 for hospital, and $50 for attorney’s fee
The county claims (1) that the injury did not arise out of and in the course of the employment, and (2) that no petition was filed within a year after the accident occurred, by reason of which the statute of limitations had run.
The evidence shows that Speas had been employed on road work for the county for a considerable time. For straightaway dragging he received a definite sum per mile; for special work, such as dragging down and leveling newly prepared stretches of road, the pay was $3.50 a day for a man and $7.50 a day for a man and a team of four horses. The reason for the two classes of wage scales was that the straightaway mileage could readily be checked by well-known sectional subdivisions, while the dragging could not be definitely and easily measured; so the latter was paid for by the day. On the 4th of October, 1926, Speás was using a four-horse team furnished by him, dragging for the county on the road passing his farm. At about 11:30 he ceased dragging for the forenoon because he was then in front of his home. He drove the rig into the yard and unhitched
The county now claims that, the injury being caused by ■the kick of a horse furnished by the employee, happening at the noon hour and not while the employee was actually engaged in dragging the road, therefore the employer is not .liable.
It is difficult to formulate a definition of the words “arising out of and in the course of his employment,” as phrased by the statute (Comp. St. 1922, sec. 3024), so as to cover all cases of compensable injury to an employed workman or so as to exclude those that are not compensable. Generally it may be said that an injury “arises out of” an ■employment when there is a reasonable causal connection between the conditions under which the work is, in all the circumstances, required to be performed and the injury received while the employee is thus engaged; and that the injury is received “in the course of” the employment when, .at the time the injury is received, the workman is engaged ■at the work he is employed to perform or in some duty incidental to that work. If incidental, it must be incidental to the main character of the business on which the employee was engaged for the employer. It cannot occur independent •of the relation of master and servant. Even with such general principles in mind, it is sometimes a close question to discover whether an accident arises out of an employment and whether it occurred in the course of the employment. It may therefore be said of this element or phase of work
In his argument for affirmance, appellee cites Tragas v. Cudahy Packing Co., 110 Neb. 329, as controlling in principle. In that case this court affirmed a judgment, allowing compensation to Tragas, who, at the time of his injury, was engaged in sharpening a chisel for the purpose of cleaning some pans. It happened during the noon hour, and was done on claimant’s own time-, for which he was not paid. It was held that the work on which Tragas was engaged was incidental to his employment. When the injury occurred, the employee was grinding the chisel on one of the employer’s grindstones, which was not equipped with a safety guard as provided by law. While the opinion does not so state, yet it may be inferred that the employee was using the employer’s grindstone on the employer’s premises. We do not discover that this case has been subsequently cited on the phase involved in the present case.
Appellee also cites Punches v. American Box Board Co., 216 Mich. 342. In that case an employee, who was expected to care for and feed a team of horses he was hired to drive, was in the habit, with his foreman’s knowledge, of driving them home at night for convenience and of keeping them in his own barn. In driving them to his employer’s place-of business to begin the day’s work, he was injured. It was held that he was acting in the scope of his employment and was entitled to compensation.
Another case cited by appellee is Brown v. Bristol Last Block Co., 94 Vt. 123, where a man employed with his team was killed by it about the noon hour, after he had eaten his, dinner, while attempting to stop the team when it was running away. He was run over and killed. It was held that the accident arose out of and in the course of his employment. In the opinion it was said: “The horses were hired by the employer, and, for the time in which the accident happened, their services belonged to it, and the employer was materially interested in that service.” The opinion
The only other case cited by appellee in his argument for affirmance is Derleth v. Roach & Seeber Co., 227 Mich. 258. The employee was killed by monoxide gas in his own garage while caring for his own automobile. He had gone home near the close of the day to prepare the car for a trip to be taken as a traveling salesman. The trip was usually taken by train, but whenever he used his car the employer made an allowance of 10 cents a mile for its use. The death occurred at 5 :15 p. m., which was within the employee’s usual hours of service. The injury was held compensable as “arising out of and in the course of his employment.” The opinion cites Punches v. American Box Board Co., supra; quotes Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, where the employee was injured while, as directed by his employer, taking home for safe-keeping a considerable amount of money collected at the employer’s store; and cites Matter of Kingsley v. Donovan, 155 N. Y. Supp. 801, where the employee owned a motorcycle used in going to and from his work and between jobs, but received no pay for its use. While cleaning it after he had arrived for work he was injured. In each of the three cases last cited the injury was held to be compensable.
In its argument for reversal, appellant relies on a Vermont case, Kneeland v. Parker, 100 Vt. 92: “Where teamster, owning pair of horses, who had been engaged to draw logs of employer from wood lot for distance of four miles to employer’s mill at specified rate per thousand feet, without agreement to haul any specific quantity or to work for any definite time, stopped at hotel midway between wood
Another case cited by appellant on this point is Morey v. City of Battle Creek, 229 Mich. 650. Keagle was a driver employed by one Avery, who contracted with the city to furnish it teams and drivers as needed at 85 cents an hour. Keagle was paid 'by Avery one-half of the amount Avery received. At 4:45 in the afternoon the officer in charge of city work told Keagle there was not sufficient time to get another load of dirt and he could go home. He at once left, and when about three-quarters of a mile from the work one of his horses was bitten by a dog, the team ran away, and Keagle was killed. His widow, Mrs. Morey (who had again married), was denied compensation in accordance with the general rule in Michigan construing the compensation law as not applying to accidents which befall empffiyees in going to and leaving the place of employment. Hills v. Blair, 182 Mich. 20; Hopkins v. Michigan Sugar Co., 184 Mich. 87.
In particular circumstances the Michigan court has made exceptions to the general rule stated above. In Beaudry v. Watkins, 191 Mich. 445, a boy was employed by a laundry as a delivery or errand boy, and, on returning from lunch at homo, at noon, on his bicycle, caught on a motor truck, was thrown and was run over by another vehicle. He had received permission to go home to his lunch on this occasion,
Appellant relies particularly on three Minnesota cases, in which compensation was denied: State v. District Court of Hennepin County, 144 Minn. 259, where relator’s husbancl, who furnished his' services and his team and running gears of his wagon to Minneapolis for driving a sprinkling wagon from eight in the morning to five in the evening, and was killed by one of his horses whilé caring for it one evening in the stable; Simonds v. Reigel, 165 Minn. 458, where plaintiff's husband, a teamster in a gravel pit four miles from his home, leaving his team to be fed by another, at noon went on a truck of another loaded with gravel from the pit to his home, and was killed near his home while attempting to get off the truck before the driver had stopped it; and Jotich v. Village of Chisholm, 169 Minn. 428, where an employee with his own team, hauling dirt at a stated price per day or hour, drove at noon from the place of work, about a mile distant, to eat and feed his team, and while unhitching his team suffered an accidental injury. In all three of these cases compensation was denied.
It may be truly said that the ultimate judgments, in these cases resulted from the court’s interpretation and application of the Minnesota statutes by which the words “arising out of and in the course of employment” are further modified by statute denying compensation to employees “except
Thus, it appears that the cases are not harmonious. The Minnesota cases, cited by appellant, to which we have referred are not reconcilable with the claims of the appellee. However, in view of our decision in Tragas v. Cudahy Packing Co., supra, we have committed ourselves rather definitely to the view that, if the work at which an employee is engaged when injured is incidental to his employment, his injury should come under the act. There, as here, the injury happened at the noon hour, and occurred on the workman’s own time, for which he was not paid. There it occurred on the premises of the employer. Here, it is true, it did not occur at the place of work, but that was a mere incident due to the fact that the dragging on the county road, on that particular day, happened to (be near the home of the employee, so that he ate at home and fed the team there for convenience. If the work had been a few miles or more distant, he would have taken his lunch and feed for the horses and would have fed them right at the place of employment. They could not have been fed on the road itself. At the home they were little more removed from the exact place of work than if on the roadside. The team was hired and paid for separately. The evidence shows that, while Speas furnished the team, .yet it was owned by his son. We
Plaintiff introduced two letters written to him on the letter-heads of the insurance company by counsel for appellant who argued the case before us. One of these letters, dated ■ September 2, 1927, asked why Speas went to two doctors, one at St. Edwards and one at Columbus, both of whose bills he had received; the other letter, dated September 16, 1927, said, quoting it in full: “I have your letter of recent date and I am about to close your claim. Will you kindly advise me by return mail the date upon which you Were able to return to work after your accident?”-
After hearing the evidence, the district court found that the county “had agreed to the payment of compensation to the plaintiff prior to the expiration of one year from the daté of the injury and that this action is not barred.”
The- insurance company is not a party to the suit. If it were, and had a right to defend on the merits of the suit
The plaintiff was allowed an attorney’s fee of $50 in the district court. He ought to be allowed a fee of $100 in this court.
For the reasons stated, the judgment of the district court is affirmed, and the plaintiff is allowed an additional fee of $100 for services of his attorneys in this court, the same to be.taxed as costs.
Affirmed.
Dissenting Opinion
dissenting.
I am compelled to dissent from the opinion in this case, and will briefly state my reasons therefor.
The strongest argument advanced for allowance of compensation is that, if the plaintiff had been several miles from home at the noon hour and had simply driven his team to the side of the road to feed them and partake of his own lunch, and had been kicked by one of the horses and received an .injury, a compensable case would be presented. I recognize the force of the illustration; but, assuming the correctness of the conclusion stated, I apprehend that the situations may be distinguished as the supposed situation may come within that portion of the clause of the statute, “where their service requires their presence as a part of such service.” In such case, the act of feeding the horses was so closely connected with the performance of the work that it might be considered as incident to and a part of it. Analogy is not always a dependable method of reasoning, and I think it is faulty here, for the reasons stated and because of the different circumstances of the situation.
I think the Michigan, Vermont and New York cases relied upon in the opinion are not controlling, for the reason that Michigan and New York, and, so far as I am able to discover, Vermont, have no statute limiting and defining the phrase “arising out of and in the course of employ
The case of Brown v. Bristol Last Block Co., 94 Vt. 123, sustains the plaintiff's contention, but Kneeland v. Parker, 100 Vt. 92, in which compensation was refused, is not distinguishable in principle from the case at bar, though the facts are somewhat dissimilar.
Finally, it is suggested by the opinion that, in order to reverse this case, it will be necessary to overrule the case of Tragas v. Cudahy Packing Co., 110 Neb. 329. I think that case is clearly distinguishable by the fact that Tragas was engaged in work solely attributable to the fact of his employment. The sharpening of the chisel would not have been undertaken by him but for the fact that it was to be used exclusively in the performance of the work for which he was employed. Furthermore, the chisel belonged to the employer and was an instrumentality specially supplied for the use of the servant. The feeding of the horses in the present case was an independent transaction, and was required to foe done regardless of the service due his employer and not because of such employment.
For the above reasons, I respectfully dissent from the opinion of the court.