Collins v. Casualty Reciprocal Exchange

• Decision Date: 11 May 1932
• Docket Number: 28326
• Citation: 242 N.W. 457,123 Neb. 227
• Parties: CLIFFORD COLLINS, APPELLEE, v. CASUALTY RECIPROCAL EXCHANGE, APPELLANT
• Court: Nebraska Supreme Court

242 N.W. 457

123 Neb. 227

CLIFFORD COLLINS, APPELLEE, v. CASUALTY RECIPROCAL EXCHANGE, APPELLANT

No. 28326

Supreme Court of Nebraska

May 11, 1932

APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. In a proceeding under the Workmen's Compensation Act, an award need not necessarily be reversed in the supreme court on the ground that the compensation allowed was not within the issues, where such issues were tried by the litigants without any objection to the pleadings.

2. Where a plaintiff was awarded compensation for temporary total disability but his injury was latent and did not culminate in permanent disability for more than six months thereafter, in such case the injured employee may recover for permanent partial disability where he filed his application therefor within a year from the culmination of the injury.

Appeal from District Court, Lincoln County; Tewell, Judge.

Proceedings under the Workmen's Compensation Act by Clifford Collins claimant, against the Artificial Ice & Coal Company employer, and the Casualty Reciprocal Exchange, insurer. From a judgment of the district court affirming an order of the Compensation Commissioner awarding claimant additional compensation, the insurer appeals.

Affirmed.

William E. Shuman, for appellant.

C. S. Beck and Halligan, Beatty & Halligan, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ., and RYAN, District Judge.

OPINION

DEAN, J.

This action was begun pursuant to the provisions of the workmen's compensation act by Clifford Collins against his employer, the Artificial Ice & Coal Company of North Platte, and its insurer, the Casualty Reciprocal Exchange, defendants herein, to obtain certain additional compensation for the permanent partial loss of the use of the second finger of his right hand. From an order of the compensation commissioner awarding the plaintiff additional compensation in the sum of $ 14 a week from June 16, 1930, and for 12 weeks thereafter, the defendants prosecuted an appeal to the district court for Lincoln county wherein the order was affirmed. From the judgment so rendered the Casualty Reciprocal Exchange alone has appealed.

The insurance company contends that the court erred in entering any judgment against such company, and alleges that there is "no allegation in any pleading against said appellant and no evidence of any kind indicating any liability of the appellant." But the pleadings disclose that the insurance company was named a party defendant from the very beginning of the proceedings herein, and that the same counsel appeared for both the ice company and its insurer in the original hearing before the compensation commissioner and that such counsel now appears in this court in behalf of the insurer. No objections to the pleadings were made before the compensation commissioner, nor was any objection interposed or reference made on appeal to the district court in respect of this contention. And we have held: "Where a party fails to test the sufficiency of a pleading by demurrer or otherwise, and proceeds to trial on the merits on the theory that it tenders a certain issue, which is litigated and submitted to the jury, if by any reasonable construction of the language the pleading can be construed to raise such issue, it will be held to do so." Frederick v. Buckminster, 83 Neb. 135, 119 N.W. 228 And we likewise held: "When the sufficiency of a petition is not attacked until after judgment, all reasonable intendments should be indulged in support of the judgment." Merrill v. Equitable Farm & Stock Improvement Co., 49 Neb. 198, 68 N.W. 365; Urban v. Brailey, 85 Neb. 796, 124 N.W. 467. In a proceeding under the workmen's compensation act, an award need not necessarily be reversed in the supreme court on the ground that the compensation allowed was not within the issues, where such issues were tried by the litigants without any objection to the pleadings.

The plaintiff filed his petition for additional compensation before the compensation commissioner in January, 1931, and the Casualty Reciprocal Exchange was the only party defendant named therein. On July 8, 1931, however, the plaintiff filed a motion to make his employer, the ice company, a party defendant and, on the same day, a voluntary appearance was entered by the company. The insurer argues that any defenses the employer may have waived thereby could not be extended to such insurer. It may be noted that the...