Bridger v. Lincoln Feed & Fuel Company

• Decision Date: 10 November 1920
• Docket Number: 21626
• Citation: 179 N.W. 1020,105 Neb. 222
• Parties: JONATHAN A. BRIDGER, APPELLANT, v. LINCOLN FEED & FUEL COMPANY, APPELLEE
• Court: Nebraska Supreme Court

179 N.W. 1020

105 Neb. 222

JONATHAN A. BRIDGER, APPELLANT, v. LINCOLN FEED & FUEL COMPANY, APPELLEE

No. 21626

Supreme Court of Nebraska

November 10, 1920

APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.

AFFIRMED.

R. J Greene and Hugh C. Wilson, for appellant.

F. C Foster, O. K. Perrin and S. M. Kier, contra.

ROSE, J. DEAN, J., not sitting.

OPINION

ROSE, J.

This is a proceeding under the workmen's compensation act. Plaintiff's right hand was crushed February 24, 1920, and his third finger severed therefrom, while he was unloading for defendant a car of coal for 25 cents a ton. He applied to the compensation commissioner for an award for his injuries, and was allowed therefor $ 15 a week for 20 weeks and in addition $ 7.50 a week for 9 weeks for medical expenses. From this award defendant appealed to the district court, where it was held that plaintiff was not entitled to compensation for his injuries. From a dismissal of the proceeding he has appealed.

The question presented by the appeal is the applicability of the workmen's compensation act to plaintiff's claim.

Defendant pleaded that the employment of plaintiff was "casual," and that therefore he is precluded from recovering compensation by the following statutory provisions relating to the term "employee:"

"It shall not be construed to include any person whose employment is casual, or not for the purpose of gain or profit by the employer, or which is not in the usual course of the trade, business, profession or occupation of his employer. The term 'casual' shall be construed to mean 'occasional; coming at certain times without regularity, in distinction from stated or regular.'" Rev. St. 1913, sec. 3656, as amended by Laws 1917, ch. 85, sec. 4.

For the purposes of this inquiry "casual" must be thus construed, and the facts may be stated as follows: Plaintiff began to unload a car of coal for defendant February 21 1920, and finished the task the next day. He began to unload another car February 23, 1920, and was injured the following day before he had removed all of the coal. For these services he was paid $ 20 by check of defendant, being 25 cents a ton. About a week earlier plaintiff had unloaded a car of coal for defendant in the same yards. During a year's time previously he had unloaded three or four cars and received 25 cents a ton. He was entitled to his pay when he unloaded a...