Crow v. Americana Crop Hail Pool, Inc.

• Decision Date: 10 January 1964
• Docket Number: No. 35543,35543
• Citation: 176 Neb. 260,125 N.W.2d 691
• Parties: Ruth Iris CROW, Administratrix of the Estate of Allen B. Crow, Deceased, Appellant-Cross-Appellee, v. The AMERICANA CROP HAIL POOL, INC., Appellee-Cross-Appellant.
• Court: Nebraska Supreme Court

Page 691

125 N.W.2d 691

176 Neb. 260

Ruth Iris CROW, Administratrix of the Estate of Allen B. Crow, Deceased, Appellant-Cross-Appellee, v. The AMERICANA CROP HAIL POOL, INC., Appellee-Cross-Appellant.

No. 35543.

Supreme Court of Nebraska.

Jan. 10, 1964.

Syllabus by the Court

1. To warrant a recovery under the Nebraska Workmen's Compensation Act,

the accident which caused the injury complained of must be one arising out of and in the course of the employment.

2. Such compensation act does not authorize an award in case of injury or death from a peril which is common to all mankind, to which the public in general is exposed.

3. Injuries resulting from exposure to the elements, such as abnormal heat, cold, snow, lightning, or storms, are generally classed as risks to which the general public is exposed and as not coming within the purview of workmen's compensation acts, unless the record discloses a hazard imposed upon the employee by reason of the employment greater than that to which the public generally is subject.

Eisenstatt, Lay, Higgins & Miller, Omaha, for appellant-cross-appellee.

Webb, Kelley, Green & Byam, Omaha, for appellant-cross-appellee.

Webb, Kelley, Green & Byam, Omaha, for appellee-cross-appellant.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

The plaintiff Ruth Iris Crow, as administratrix of the estate of Allen B. Crow, deceased, brought this action against the defendant The Americana Crop Hail Pool, Inc., in the Nebraska Workmen's Compensation Court to recover compensation for the death of her decedent under the Nebraska Workmen's Compensation Act.

Plaintiff's amended petition in the compensation court alleged the deceased, hereinafter at times designated as Crow, met his death on June 27, 1960, as a result of injuries sustained in an accident arising out of and in the course of his employment as a crop adjuster by the defendant and that Ruth Iris Crow was his sole dependent.

The defendant's answer was a general denial coupled with an affirmative allegation that the deceased was not an employee of the defendant but an independent contractor, and further stating that the deceased Allen B. Crow met his death as the result of a peril common to all mankind.

A trial was had before a single Judge of the Workmen's Compensation Court sitting at Omaha, Douglas County, Nebraska. Its decision held the plaintiff had failed to prove the deceased was defendant's employee at the time of his death and further that even if he had been an employee, his death was caused by a tornado and there was nothing in the nature of his employment that exposed the decedent to greater dangers than that shared in common by the community generally. It held his death was not compensable and dismissed the petition.

Plaintiff waived rehearing before the whole compensation court and appealed directly to the district court for Douglas County, Nebraska. The same issues being there presented and tried, that court held the deceased was an employee of the defendant and was engaged in such employment when the injuries causing his death occurred. Again, however, it found that the death was occasioned by the elements of nature and that the hazards to which the deceased was subjected were no greater than those borne by the general public in the area where the accident occurred. Thereupon, the district court also entered its judgment dismissing the plaintiff's petition.

Plaintiff's motion for a new trial having been overruled she has brought the matter to this court by appeal, assigning error to the trial court in finding that the death of plaintiff's decedent did not arise out of his employment.

The defendant has cross-appealed from the finding of the district court that the deceased was an employee of the defendant, contending he was an independent contractor.

Our decision being based on our finding that the decedent's death did not arise from a hazard incident to his work, but from those common to mankind generally, the exact nature of the relationship created by the agreement between the defendant and the deceased is not required to be determined and will not be discussed.

The bill of exceptions consists of a stipulation of facts jointly offered by the parties and the only disputes arising are the inferences which flow therefrom.

Defendant operates a crop hail pooling business in a multistate area and maintains an office at Omaha, Nebraska. It issues policies of hail insurance and adjusts crop hail losses in which the defendant itself and some 20 other participating insurance companies are interested depending upon the amount of stock held respectively by the others in the defendant company.

In January 1960, defendant's manager engaged Crow as a crop hail adjuster to handle hail claims and losses during the ensuing crop hail season. A written agreement designated as an Independent Adjuster's Agreement was executed by the defendant and Crow. It stated Crow had been placed on defendant's list of qualified claim adjusters and provided for a per diem compensation for the actual time required to do the work when additional aid was required, together with incidental traveling expenses.

Crow began handling such claims sent to him by the defendant in May 1960. Defendant's branch manager in the latter part of June 1960, requested one Richard Todd, another adjuster, to contact Crow and arrange a meeting between them that they might work together with respect to losses near Chappell, Nebraska.

Todd contacted Crow by telephone and the two arranged to meet at the Empire Motel in Chappell on June 27, 1960. After completing the adjustment of certain losses with which he was then occupied, Crow started for Chappell, Nebraska. While traveling on U. S. Highway No. 385 in Sedgwick County, Colorado, at a point approximately 21 miles southwest of Julesburg, Colorado, on June 27, 1960, his automobile was struck by a torado and carried from the highway causing his death.

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