Fidelity & Cas. Co. of N. Y. v. Kennard

• Decision Date: 16 March 1956
• Docket Number: No. 33914,33914
• Citation: 75 N.W.2d 553,162 Neb. 220
• Parties: The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Boss Hotel Company, a corporation; Castle Hotel Company, Appellants, v. Ruth KENNARD, Appellee.
• Court: Nebraska Supreme Court

Page 553

75 N.W.2d 553

162 Neb. 220

The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Boss Hotel Company, a corporation; Castle Hotel Company, Appellants, v. Ruth KENNARD, Appellee.

No. 33914.

Supreme Court of Nebraska.

March 16, 1956.

Syllabus by the Court.

1. Under the Workmen's Compensation Act either party at interest may file a petition in the Workmen's Compensation Court.

2. All disputed claims for workmen's compensation shall be submitted to the Workmen's Compensation Court for a finding, award, order, or judgment.

3. The Workmen's Compensation Act creates new remedies and new liabilities. The manner in which it operates is to be found under the legislation itself.

4. On any appeal to this court in a workmen's compensation case the cause will be here considered de novo upon the record.

5. Walking to and from the street and a building where one is employed is a necessary incident of the employment, and an injury sustained in so doing is compensable.

6. Where the work, or an incident thereto, exposes the employee to the happening of an event causing an accident, the accident arises out of the employment.

7. The right to tax attorney's fees in compensation cases is purely statutory.

8. By statute the right to attorney's fees in a compensation case relates to a specific situation. An employee failing to come within the statute is not entitled to attorney's fees to be allowed and taxed as costs.

Brown, Crossman, West, Barton & Quinlan, Omaha, for appellants.

Schrempp & Lathrop, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This action was commenced by the Fidelity and Casualty Company of New York, the insurance carrier for workmen's compensation for the Castle Hotel Company, a limited partnership, and the Boss Hotels Company, a corporation, in the Workmen's Compensation Court, the Castle Hotel Company and the Boss Hotels Company being brought into the action as parties plaintiff, against Ruth Kennard, an employee of the Castle Hotel Company who was injured in an accident claimed by the plaintiffs to have arisen out of and in the course of her employment, as defendant. Hearing was had before a judge of the Workmen's Compensation Court. Thereafter an award was entered in favor of the defendant. From the award and judgment of the said court, the defendant appealed to the district court. Trial was had in the district court. The district court entered judgment finding that the accident to Ruth Kennard concerned therein was not within the provisions of the Nebraska Workmen's Compensation Act. The judgment of the Workmen's Compensation Court was vacated and set aside. The Fidelity and Casualty Company of New York, Boss Hotels Company, a corporation, and the Castle Hotel Company, the employer, filed a motion for new trial. The motion for new trial was overruled. From this ruling said parties appealed to this court.

For convenience we will hereinafter refer to Ruth Kennard as Kennard, or as appellee, and to the other parties as appellants or, with reference to the Castle Hotel Company, as employer.

We believe the first proposition to determine on this appeal is the contention of the appellee that the Workmen's Compensation Court acquires jurisdiction only by the filing of a valid claim, and that in the instant case no valid claim was filed in the Workmen's Compensation Court for the reason that the appellee did not file a claim therein and claimed no rights under the Workmen's Compensation Act.

In connection with this contention, the appellee filed a motion in this court to dismiss the appeal. Ruling thereon was reserved until this case was heard on its merits. The motion alleged that the appellee had filed a common law action in the district court for Douglas County against the appellants wherein she prayed for damages for personal injuries sustained by her on account of the negligence of the appellants, Boss Hotels Company and the Castle Hotel Company; that the appellants filed an answer to the common law action; that the appellee never had claimed to be under the Nebraska Workmen's Compensation Act; that the appellants had made certain voluntary payments to her by way of drafts which she had not cashed, and also voluntarily paid certain medical bills, which payment could not be prevented by the appellee; that the present action constituted an attempt by appellants to have the validity of a common law defense prejudged by a court of equity; and that if the appellee was under the Workmen's Compensation Act at the time of her injury, the same was a defense to the common law action pending between the parties. Appellee moved to have the appeal dismissed.

The transcript discloses that on September 21, 1954, the Fidelity and Casualty Company of New York, the insurance carrier for the Boss Hotels Company and Castle Hotel Company, the latter being brought into the action as plaintiffs later, filed its petition in the Nebraska Workmen's Compensation Court making Ruth Kennard, an employee of the Castle Hotel the appellee here, defendant. This petition alleged payments of compensation benefits to the defendant for temporary total disability for 7 weeks, from March 10, 1954, to April 27, 1954, at the rate of $26 per week, or the total sum of $182; that in addition, hospital, medical, and drug bills on behalf of the defendant were paid as follows: To Doctors Hospital, Omaha, $195.05; to Drs. Simonds, Hardy, and McArdle, Omaha, for X-rays, $40; to John O'Brien, druggist, $6.15, a total of $241.20. The petition further alleged that after the payment of the aforesaid compensation benefits and hospital, medical, and drug bills, the defendant, through her attorney asserted a common law action against her employer, the Castle Hotel Company; that no suit had been instituted by any of the parties thereto prior to the filing of this petition; that following the assertion of a common law liability against the employer, the insurance carrier discontinued the payments of weekly compensation for temporary total disability as of April 27, 1954; and that the attending physician stated that the temporary total disability continued until May 17, 1954, when defendant was or should have been able to resume work. The petition prayed that a hearing be had before the Workmen's Compensation Court and that an adjudication be made by said court that this case was one falling within the province and jurisdiction of the Nebraska Workmen's Compensation Court; that the rights and liabilities of the parties be determined; and that plaintiff be awarded such relief as to which it may be entitled under the provisions of the Workmen's Compensation Act.

To the above petition the defendant filed an answer. In the answer she denied that the accident came under the provisions of the Nebraska Workmen's Compensation Act, and alleged affirmatively that because of the negligence of the Boss Hotels and the Castle Hotel, she suffered her injury, and that she had her action at common law against the said hotels.

The case was heard before a judge of the Nebraska Workmen's Compensation Court on November 22, 1954, and award was entered on January 20, 1955, wherein the court made findings as follows: That the defendant was receiving an average weekly wage in excess of $39 per week which was sufficient to entitle her to the maximum compensation payments of $26 per week that the defendant had been paid 7 weeks compensation for temporary total disability but was entitled to an additional 3 weeks and 5 days compensation at the rate of $26 a week for temporary total disability; and that an additional amount was due her in the sum of $96.57 and plaintiffs were liable for the bill due Dr. Max Block in the sum of $158. The court also found that the case fell within the purview of the Nebraska Workmen's Compensation Act. Judgment was entered in accordance with the findings.

The defendant appealed directly to the district court, filing her petition on appeal on January 31, 1955. In her petition she prayed the award made in the Nebraska Workmen's Compensation Court be vacated and set aside; that the court find and determine that the accident therein concerned did not fall under the provisions of the Nebraska Workmen's Compensation Act; that if, however, the court should find that said accident did come within the act, the plaintiffs should pay any and all medical and hospital bills and temporary disability compensation, together with permanent partial disability which defendant sustained as a result of said accident.

The appellants filed an answer to the appellee's amended petition in the district court on August 4, 1955. It is apparent that the appellants commenced an action in the Nebraska Workmen's Compensation Court prior to the time that appellee commenced her common law action in the district court. We find nothing in the record to the contrary.

Section 48-173, R.R.S.1943, provides in part: 'In all cases involving a dispute with reference to workmen's compensation, either party at interest, without cost, either in person or by attorney, may file with the court a verified petition setting forth the names and places of residence of the parties and the facts relating to the employment at the time of the injury for which compensation is claimed, the injury in its extent and character, the amount of wages being received at the time of the injury, the knowledge of or notice to the employer of the occurrence of such injury and such other facts as may be considered necessary for the information of the court, and also stating the matter or matters in dispute and the contention of the petitioner with reference thereto.'

In Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651, 654, this court said: 'With reference to the time for filing a petition in the Workmen's Compensation Court in case of a dispute, which section 48-173, R.R.S.1943, provides may be done by either party, *...