Berry v. School Dist. of Omaha, 33017
| Decision Date | 06 November 1951 |
| Docket Number | No. 33017,33017 |
| Parties | BERRY v. SCHOOL DISTRICT of OMAHA, in the County of Douglas. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Under the Nebraska Workmen's Compensation Act the rights of the plaintiff and the liabilities of the defendant are fixed by the terms of the statute.
2. The general rule is that if an employee is injured while absent from the employment for lunch, the injury does not arise out of nor in the course of the employment.
Frank C. Heinisch, William H. Mecham, Omaha, for appellant.
King, Haggart & Kennedy, Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a workmen's compensation case. It presents the question as to whether or not plaintiff's injuries were caused by an accident arising out of and in the course of her employment by defendant, as provided in sections 48-109 and 48-110, R.S.1943. Plaintiff's petition was dismissed after hearing by the workmen's compensation court. On appeal and after trial de novo, it was dismissed by the district court. Plaintiff appeals. We affirm the judgment of the trial court.
The facts are not in dispute. Plaintiff suffered an accident and serious injury on September 6, 1949. Plaintiff was at the time of the accident a teacher under annual contract with the defendant. She taught school in the kindergarten at Franklin School, an elementary school. All her duties and service were performed at the Franklin School.
The defendant maintained a lunchroom in Technical High School for the benefit of pupils and employees. The high school is some 9 or 10 blocks from the elementary school where plaintiff taught. Teachers in the high school and in some of the surrounding schools ate there where they had prompt service, good food, and reasonable prices. Eating there was optional with the teachers. It was the most convenient hot-lunch place. Plaintiff usually drove to the high school for her lunch with another teacher.
Usually plaintiff dismissed her pupilse at 11:15 a. m. She was required to remain in the building one-half hour thereafter and required to return twenty minutes before the opening of the afternoon session; or, stated otherwise, she was not to leave for lunch before 11:45 a. m., and was to be back at 12:40 p. m. On occasion she was required to return early for a conference. Such a requirement was not involved on the day of the accident. Occasionally plaintiff remained after 11:45 a. m., if all her young pupils had not left for home. On the day of the accident plaintiff, because of such a situation, did not leave for lunch until 11:55 a. m. She and another teacher then drove to the high school; secured, ate, and paid for their lunch; and visited with another teacher. She performed no service and had no service to...
To continue reading
Request your trial
-
Smith v. City of Albuquerque
...the authorities hold that the injury does not arise out of the employment. See also Trembath v. Riggs; Berry v. School District of Omaha, 154 Neb. 787, 49 N.W.2d 617 (1951); J.R. Hess, Inc. v. Workmen's Compensation Appeal Bd., 17 Pa.Cmwlth. 87, 329 A.2d 923 (1975); Hudson & Thurston Motor ......
-
Thomsen v. Sears Roebuck & Co.
...the injury was sustained in the course of his employment. Miller v. Reisch Co., 132 Neb. 338, 271 N.W. 853. In Berry v. School Dist. of Omaha, 154 Neb. 787, 49 N.W.2d 617, we held that when an employee, who is employed to work at specific fixed premises, is injured while absent from those p......
-
Frerichs v. Eastern Neb. Public Power Dist.
... ... , all of Lincoln, Edwin Moran, Nebraska City, Lee, Bremers & Lee, Omaha, for appellees ... Before SIMMONS, C. J., and CARTER, ... 288, 143 P.2d 128, was one where a barbed wire on a high school ground became ... charged with current. Contact with this wire caused ... ...
-
Wengler v. Grosshans Lumber Co.
...which by plain language are excluded from its scope.' Bekelski v. O. F. Neal Co., 141 Neb. 657, 4 N.W.2d 741. In Berry v. School District, 154 Neb. 787, 49 N.W.2d 617, this court said: 'Under the Nebraska Workmen's Compensation Act the rights of the plaintiff and the liabilities of the defe......