Baughman v. City of Omaha

• Decision Date: 06 January 1943
• Docket Number: 31518.
• Citation: 7 N.W.2d 365,142 Neb. 663
• Parties: BAUGHMAN v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

7 N.W.2d 365

142 Neb. 663

BAUGHMAN v. CITY OF OMAHA.

No. 31518.

Supreme Court of Nebraska

January 6, 1943

Syllabus by the Court.

1.Workmen's compensation is awardable "when personal injury is caused to an employee by accident arising out of and in the course of his employment," but does not "cover workmen except while engaged in, on or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen."Comp.St.1929, §§ 48-101 48-152.

2.Injury held not compensable under the Workmen's Compensation Law on a record showing that employee was a detective sergeant on the police force of Omaha; that he reported off duty to the police station at the end of his eight-hour shift without any assignment or requirement for subsequent special duty; that he was struck and fatally injured by an automobile while on his way home from work.

James M. Patton, of Omaha, for appellant.

Harold C. Linahan, W. W. Wenstrand, Edward Sklenicka, and G. H Seig, all of Omaha, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

ROSE Justice.

This is a proceeding under the Workmen's Compensation Law. Comp.St.1929, §§ 48-101 to 48-161.

Thomas A. Baughman, a detective sergeant of the police department in Omaha, was struck by an automobile on Thirteenth street south of Dodge street, February 2, 1941, at 12:09 a. m., was fatally injured by the impact and died six hours later, leaving his widow, Violet M. Baughman, and six children under 21 years of age.

At the time of the accident the city employee's salary was $160 a month and his widow, plaintiff, petitioned the compensation court for an allowance of $15 a week for the statutory period and for funeral expenses of $150.

The city of Omaha, defendant, denied liability to plaintiff for compensation.A judge of the compensation court heard the parties to the cause and disallowed the claim.Plaintiff appealed to the district court, where, upon a trial, there was a finding that Thomas A. Baughman was not engaged in the performance of his duties as an employee of defendant at the time of the fatal accident.From the dismissal of the proceeding, plaintiff appealed to the supreme court.

The parties agree that the only question involved in this case is whether or not the employee was acting within the scope of his employment for the city of Omaha at the time of the accident resulting in his death.There is no dispute over the facts.Both parties rested at the close of plaintiff's evidence.The following facts are shown by the record: On February 2 1941, the city employee, Baughman, was a detective sergeant on the police force.His assignment for duty on that date was "misdemeanor detail, petty larceny, theft."His shift was from 4:00 o'clock in the afternoon until midnight.He checked "off duty" at the police station at 12:00 o'clock at night and started on foot toward his home.He left the sidewalk on Thirteenth street south of Dodge street, passed between two parked cars at the curb, entered a lane of public travel for vehicles, while...