Chrisman v. Farmers Co-op. Ass'n of Bradshaw

• Decision Date: 11 March 1966
• Docket Number: No. 36152,36152
• Parties: Hazel CHRISMAN, Appellee, v. FARMERS COOPERATIVE ASSOCIATION OF BRADSHAW, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 809

140 N.W.2d 809

179 Neb. 891

Hazel CHRISMAN, Appellee, v. FARMERS COOPERATIVE ASSOCIATION OF BRADSHAW, Nebraska, Appellant.

No. 36152.

Supreme Court of Nebraska.

March 11, 1966.

Syllabus by the Court

1. In order to recover under the Workmen's Compensation Act the plaintiff must prove that the death or disability of the workman was the result of an accident arising out of and in the course of the employment.

2. In determining whether or not a risk arises out of the employment, the test to be applied to any act or conduct of an employee which does not constitute a direct performance of his work is whether or not it is reasonably incident thereto, or if it is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard.

3. Whether or not an accident arises out of and in the course of the employment must be determined by the facts of each case. There is no fixed formula by which the issue may be resolved.

4. The term 'arising out of' the employment in the Workmen's Compensation Act covers all risks of accident from causative acts done or occurring within the scope or sphere of the employment. All acts reasonably necessary or incident to the performance of the work, including matters of personal convenience and comfort, not in conflict with rules and specific instructions, in which an employee may normally be expected to indulge under the conditions of his work, are regarded as being within the scope or sphere of the employment.

5. The Workmen's Compensation Act will be liberally construed to accomplish the beneficent purposes of the act.

John E. Dougherty, York, for appellant.

Gordon B. Fillman, York, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and BRODKEY, District Judge.

CARTER, Justice.

The plaintiff, Hazel Chrisman, brought this action against the Farmers Cooperative Association of Bradshaw, Nebraska, to recover benefits resulting from the death of her husband, John W. Chrisman, alleged to be due under the Workmen's Compensation Act. After a hearing before a single judge of the compensation court, an award of benefits was denied. On appeal to the district court for York County the district court granted compensation benefits to the plaintiff. The defendant has appealed to this court for a review of that decision.

The evidence shows that on September 10, 1962, the date of the accident, John W. Chrisman was employed by the defendant as manager of its oil and gas service station in Bradshaw. He received a monthly salary of $350 per month and an annual bouns, the amount of which is not material. He was assigned regular hours from 7 a. m. to 11:30 a. m. and from 12:30 p. m. to 6 p. m. He had a regular helper who was on duty during deceased's lunch hour and the deceased likewise was on duty during the helper's lunch hour. The work was that which was usually performed in such service stations. The office was in one end of the building. In the other end was a hydraulic lift used for the oiling and greasing of automobiles. Between them was an area used for washing cars, the changing and repairing of tires, and the making of minor repairs on automobiles.

On the day of the accident the deceased went home for lunch at his usual hour of 11:30 a. m. On leaving home just before 12:30 p. m., he told his wife he was going to take the family car, a 1958 Ford, to the service station; that the generator needed some work to be done on it. At about 1:15 p. m., the deceased was found dead on a creeper under his automobile in the middle area of the station. It was evident that he had jacked up the car, rolled under it on the creeper to work on the car, the car had slipped off the jack which was found nearby, and the car had crused him, causing his death.

The evidence shows that the Farmers Cooperative operated a grain elevator at another location in Bradshaw. One R. G. Hewitt was the general manager of both the elevator and the oil station. The deceased managed the oil station under the general supervision of Hewitt. Hewitt testified that employees were permitted with his full knowledge to make adjustments and minor repairs on their personal cars during their spare time at the service station. Donald Kamtz, a part-time bookkeeper and helper, corroborated this statement.

There is evidence that employees sometimes used their own automobiles in the company's business when transportation provided by the defendant was not available. We gather from the evidence that minor use of employees' cars was not paid for, but for distance driving the board of directors of the defendant paid mileage for such use.

The general rule is that injuries sustained in repairing a personal automobile, where there is no contractual obligation for its use, does not arise out of and in the course of the employment except when such repairs are made while the automobile is actually being used in the service of the employer. The defendant contends that deceased's automobile was not being used in the service of the employer at the time of the accident and that it does not fall within the stated exception. This is undoubtedly true. The contention that recovery...