This is а proceeding under the workmen’s compensation act. While Arthur Dee, a boy 16 years old, who appears in the record as defendant, was in the employ of the Western Newspaper Uniоn, herein called plaintiff, and was running an elevator in the city of Omaha for $9 a week, his
It is first argued that the judgment of the district court is void because it was pronounced by Judge Carroll O. Stauffer, who, it is said, acted without jurisdiction in hearing and in determining the controversy. It is insisted that the case AA-as called by Judge Willis G-. Sears, who assumed jurisdiction, ordered the trial to proceed, and heard part of the testimony. Plaintiff takes the position that Judge Sears did not continue the case or finish the trial or lose
“The employers’ liability act was intended by the legislature to simplify legal proceedings and to bring about a speedy settlement of disputes between the injured employee and his employer.”
To carry out the purрoses of legislation on this subject Judge Stauffer properly assumed jurisdiction with the consent of Judge Sears during the latter’s absence in California.
On the merits of the case there is little in controversy beyond the allowance of ah attorney’s fee and the statutory penalties for nonpayment of weekly compensation as the installments fell due.
Was an attorney’s fee properly allowed? The answer depends on the terms of the statute. In 1919 the act was amended and now contains the followihg provision:
“Whenever the employer refuses payment, or when the employer neglеcts to pay compensation for thirty days after, injury, and proceedings are -had before the compensation commissioner, a reasonable attorney’s fee shall be*307 allowed the employee by the court in the event the employer appeals from the award of the commissioner and fails to obtain any reduction in the amount of such award; the appellatе court shall in like manner allow the plaintiff a reasonable sum as attorney’s fees for the appellate proceedings.” Rev. St. 1913, sec. 3666, as amended, Laws 1919, ch. 91, sec. 4.
Though this provision was inserted by amendment after defendant was injured, the attorney’s fee relates to the remedy and may be taxed as an item of costs in entering judgment on a claim that arose before the amendatory act was passed. Reed v. American Bonding Co.,
Were the penalties imposed by the trial court for nonpayment of weekly compensation when due authorized by law? The objections to these penalties may be summarized thus: Defendant made no claim for statutory compensation; did not commence any proceeding for the purpose of having his rights determined; refused to accept periodical payments; demanded $5,000 and refused to accept less than $3,000. In this connection it is asserted by plaintiff that an offer to pay compensation weekly would have been foolish and futile, because it would have been rejected; that from the beginning plaintiff was willing to pay all compensation allowable under the statute, and of this defendant was advised; that there was a reasonable controversy which prevented the allowance of penalties. Plaintiff’s theories of the facts and the law cannot be accepted in their entirety. Both parties demanded too much and neither is in an ideal position in that respect. In court each stands on legal rights measured by statute. Plaintiff knew soon after the injury that defendant demanded monеy for the injuries suffered and compensation in some form in some amount is conceded. Plaintiff sought
There was, however, a reasonable controversy over the right of defendant to recover, in addition to compensation for a temporary total disability, $6 a wеek for 25 weeks for a permanent partial loss of 20 per cent, of normal ef' ficiency, and plaintiff should not have been penalized for litigating this phase of the case or for deferring рayments pending a solution of that question. It has been the subject of grave consideration and just recently has been solved in favor of the employee. Poast v. Omaha Merchants Express & Transfer Co.,
Reversed.