Boyce v. Burleigh
| Decision Date | 18 July 1924 |
| Docket Number | 24062 |
| Citation | 199 N.W. 785,112 Neb. 509 |
| Parties | ARTHUR BOYCE, JR., APPELLEE, v. J. R. BURLEIGH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Sorensen & Bollen and Sterling F. Mutz, for appellant.
Frank M. Coffey, contra.
Heard before MORRISSEY, C. J., GOOD, DAY and THOMPSON, JJ., and REDICK, District Judge.
This is an action for compensation under the employers' liability law. Compensation was denied by the commissioner, but upon appeal to the district court plaintiff was awarded the expense of hospital and doctor bills and $ 6 a week for 150 weeks, and a penalty of 50 per cent. for waiting time. The injury to plaintiff was caused by the accidental discharge of a shotgun in the hands of a fellow employee, and resulted in the loss of his right foot. The defendant has appealed to this court. The defendant conducts a chicken hatchery and employed the plaintiff, Arthur Boyce, of the age of 19 years, and several other boys of about the same age, among others Rex Hazelrig, who was handling the gun contrary to orders at the time it was accidentally discharged. By the terms of the employment plaintiff was to do a number of things and whatever he was called upon to perform in connection with the business of the hatchery, and was to receive wages in the sum of $ 6 or $ 7 a week and his board and lodging on the premises of the employer. No hours of services were fixed, but plaintiff was expected to remain upon the premises subject to the directions of his employer. The meals were taken with the employer's family and the rooms where the boys slept were in a separate building from the hatchery. The office was on the first floor of the hatchery building and consisted of a room in which the office desk and other furniture was separated from the part used by the public by a banister or railing. The office was used in the evenings by the boys as a place of recreation, reading matter and a phonograph being provided for their entertainment. In another room of the building was a pool table upon which the boys were permitted to play. Plaintiff's employment commenced May 20, 1923, and continued until the date of the accident on June 30, following. There is some dispute in the evidence as to whether the work of the day was all done before the evening meal, but we think that an inference fairly arises from the testimony that such was not one of the requirements of the employment, and that in practice quite a number of chores were done after supper. Plaintiff so testified and he is supported in this by Hazelrig. Two week's after plaintiff's employment commenced the defendant procured a shotgun and shells for the purpose of being used to shoot or scare away pigeons which were in the habit of devouring the feed spread upon the ground in the feed lots where the chickens were kept, and the same had been used a number of times by the defendant for that purpose prior to the accident. It was a single-barreled shotgun and when not in use was kept unloaded in the office behind the door, the shells being kept in the desk. The boys had been warned not to use the shotgun, but on several occasions, during the absence of the defendant, plaintiff had taken it out and shot pigeons or shot it in the air. Hazelrig had never had the gun in his hands until just before the accident, which occurred on Saturday evening after supper between 6 and 7 o'clock. On that evening supper was had a little earlier than usual, about 5:30, and defendant was going to take the plaintiff down town to get a hair cut, but upon telephoning his mother she forbade him going, and after defendant left plaintiff took the gun and went out and shot at pigeons, brought it back and stood it unloaded in the corner where it was kept. A short time thereafter, while the boys were in the office, Hazelrig picked up the gun, procured a shell from the desk and loaded the gun, and, as he was passing through the room to go out, it was accidentally discharged, striking the plaintiff in the right ankle and injuring him to such an extent that his foot had to be amputated. Plaintiff testifies that a part of his work consisted in filling a pail with water and leaving it in the cellar by the furnace for the use of Mrs. Burleigh, who had charge of the heating apparatus connected with the incubators, and that he generally performed that work after supper. He further testified that just before the accident he was passing by the stove in the office on his way to secure the bucket for the purpose of filling it and placing it by the furnace in the cellar, when the gun was discharged and he received his injury. Hazelrig testified that he thinks plaintiff was leaning over a desk at the time the gun went off, and that he does not think plaintiff had the pail with him, but plaintiff's testimony was to the effect that he was going after the pail. We do not think this dispute is of much importance for reasons which will be stated later on.
The defendant makes two contentions as grounds for reversing the judgment of the district court: (1) That the accident did not occur during the course of the plaintiff's employment; and (2) that plaintiff's injury did not arise out of the employment.
As to the first contention, we are of the opinion that the finding of the district court that the accident occurred during the course of the plaintiff's employment is amply sustained by the evidence and therefore should...
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