Franzen v. Blakley

Decision Date11 April 1952
Docket NumberNo. 33147,33147
Citation52 N.W.2d 833,155 Neb. 621
PartiesFRANZEN v. BLAKLEY et al.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Upon appeal the same cause must be presented in this court that was tried in the court below. If an issue is there tried by both parties, and without objection from either that the issue is not sufficiently pleaded, such objection will not be considered in this court as ground for reversal.

2. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning.

3. In the absence of anything to indicate the contrary, words must be given their ordinary meaning.

4. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.

5. It is not within the province of a court to read plain, direct, and unambiguous language out of a statute.

6. If possible, the entire statute is to be applied as written.

7. To permit an award of compensation under the provisions of section 48-128, R.S.Supp., 1951, a claimant must in fact have a permanent total disability.

8. The Nebraska Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinement of interpretation.

9. For workmen's compensation purposes, 'total disability' does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.

10. A workman who, solely because of his injury, is unable to perform or to obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled within the meaning of the workmen's compensation law.

11. An employee may be totally disabled for all practical purposes and yet be able to obtain trivial occasional employment under rare conditions at small remuneration. The claimant's status in such respect remains unaffected thereby unless the claimant is able to get, hold, or do any substantial amount of remunerative work either in his previous occupation or any other established field of employment for which he is fitted.

12. If the words used in a legislative act had, at the time used, received a settled construction, we presume that the Legislature adopted them in that sense.

13. It is to be presumed that the Legislature in using language in a statute will give it the same significance that has already been accorded it by the Constitution and laws of the state, unless a different meaning is provided in the enactment itself or must be drawn from its context.

14. The right to tax attorney's fees in compensation cases is purely statutory. No other authority to allow an attorney's fee is authorized.

15. Section 48-125, R.S.1943, relates to an 'employer' appealing and failing to reduce the amount of the award and to the taxing of an attorney's fee as costs against the 'employer.'

Clarence S. Beck, Atty. Gen., Clarence A. H. Meyer, Asst. Atty. Gen., Walter E. Nolte, Deputy Atty. Gen., for appellant.

Davis, Stubbs & Healey, Richard D. Wilson, Cline, Williams, Wright & Johnson, all of Lincoln, for appellees.

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

SIMMONS, Chief Justice.

This is an action to recover benefits under the provision of section 48-128, R.S.Supp., 1951, the second-injury provision of the Workmen's Compensation Act. The matter was heard before one judge of the compensation court, before the compensation court sitting en banc, and on appeal before the district court. Plaintiff prevailed. The State appeals. We affirm the judgment of the district court. Plaintiff cross-appeals asking for attorney's fees. We deny the cross-appeal.

The action was originally brought against plaintiff's employer (a cafe operator), his insurance carrier, and the State of Nebraska. Following the entry of judgment in the district court, plaintiff filed a satisfaction of the judgment insofar as it related to her employer and the insurance carrier. The issue here is between the plaintiff and the State, hereafter called the defendant. The ultimate question presented is the right of plaintiff to recover from the Second Injury Fund.

Both parties agree that the cause is here for trial de novo.

Plaintiff is a married woman. She was born in November 1893. She had a gradeschool education. She became engaged in part-time gainful employment in 1935, generally doing cooking, waiting tables, and kindred work.

On December 25, 1941, in an automobile accident, she fractured her right wrist. This was not a compensable injury. Plaintiff's expert witness testified that this resulted in a permanent partial disability of her right hand of 35 to 40 percent. An expert witness called by the employer fixed the permanent partial disability of her right hand and wrist at 25 percent.

Plaintiff began to work for the defendant employer in 1946 or 1947, cooking, washing dishes, waiting tables, and whatever there was to do.

On September 21, 1949, while so employed, she fell and broke her left wrist. This was a compensable injury. Plaintiff's expert witness testified that this resulted in a permanent partial disability of 50 to 65 percent. Defendant employer's expert witness fixed the percentage of permanent partial disability at 35 or 40 percent.

The plaintiff's evidence all goes to the effect that following the 1941 accident she was able to care for herself and to do her housework and the work of the employment by relying largely on her good left hand. Following the second accident she was not able to do the work of her former employment, or any other kind of work that required the effective use of her hands. She was able to do limited housework at home. She required assistance in dressing, cooking, and in much of her housework. Defendant employer's expert witness corroborated this evidence to a material extent, Plaintiff's expert, a practitioner in industrial medicine, testified in effect that because of the condition of her hands she was unemployable. We find no substantial evidence to the contrary.

Considering this evidence, the district court found that plaintiff's 1941 injury resulted in a permanent partial disability of 30 percent of her right hand, and that plaintiff's 1949 injury resulted in a permanent partial disability of 50 percent of her left hand.

The above were findings of fact made by the compensation court which the district court held were supported by the record. We agree with those findings and adopt them as our own. Disagreeing with the compensation court which found only a permanent partial disability, the district court found that plaintiff was totally disabled from earning wages in the same kind of work or work of a similar nature that she had been accustomed to perform or any other kind of work which a person of her mentality and attainments could do, and that plaintiff either in her own particular line of work, or in any other for which she would be fitted, was totally disabled. The district court further found that plaintiff was entitled to recover from the Second Injury Fund 'on account of the permanent and total disability' caused by the 1949 injury combined with the disability caused by the 1941 injury. The district court entered a judgment in accord with the findings.

The defendant contends that there was no issue of total permanent disability before the workmen's compensation court and that the district court acted in excess of its powers under section 48-184, R.S.Supp., 1951.

Plaintiff pleaded in the compensation court that she had a permanent partial disability both as to the 1941 and the 1949 injuries; that she had a permanent disability affecting both hands; and that by reason of the combination of injuries she was entitled to compensation from the Second Injury Fund. The defendant denied that the plaintiff was entitled to any recovery from the Second Injury Fund.

The evidence taken before the compensation court was offered and received as the evidence in the district court. There the defendant was shown to have cross-examined several witnesses, substantially all the questions going to the issue of whether or not plaintiff was totally disabled. It appears to have been accepted that plaintiff's disabilities were permanent.

In its petition on appeal in the district court, the defendant gave as a reason for refusing to accept the award that it allowed plaintiff recovery from the Second Injury Fund for a condition other than permanent and total disability. Plaintiff in her cross-petition on appeal alleged that the compensation court erred in not finding that she was permanently totally disabled. In its motion for a new trial defendant made no direct reference to this question. It is apparent throughout that the matter proceeded at all times on the issue of plaintiff's permanent and total disability.

We do not determine whether or not the issue was sufficiently pleaded. The applicable rule is: 'Upon appeal the same cause must be presented in this court that was tried in the court below. If an issue is there tried by both parties, and without objection from either that the issue is not sufficiently pleaded, such objection will not be considered in this court as ground for reversal.' In re Application of Bruno, 153 Neb. 445, 45 N.W.2d 178, 179.

Section 48-128, R.S.Supp., 1951, provides in part: 'If an employee receives an injury which of itself would cause only partial disability but which, combined with a previous disability other than one caused by disease, does in fact cause permanent total disability, the employer shall be liable only for the partial disability which would have resulted from the second injury in the absence of any preexisting...

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21 cases
  • Norris v. Iowa Beef Processors, Inc., 86-159
    • United States
    • Supreme Court of Nebraska
    • March 13, 1987
    ...he is engaged or for which he is fitted. Akins v. Happy Hour, Inc., 209 Neb. 236, 239, 306 N.W.2d 914, 916 (1981). Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833 (1952), involved an employee's claim against the Second Injury Fund. Franzen's first accident, nonindustrial in origin, caused p......
  • Lozano v. Archer
    • United States
    • Supreme Court of New Mexico
    • December 4, 1962
    ...his recovery of compensation for total disability. Smith v. Spence & Son Drilling Co., 61 N.M. 431, 301 P.2d 723; Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833. Compare Clingan v. Fairchance Lumber Co., 166 Pa.Super. 331, 71 A.2d Moreover, the willingness of the employer, through special ......
  • City of Scottsbluff v. Tiemann, 37463
    • United States
    • Supreme Court of Nebraska
    • March 6, 1970
    ...... Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833; Todd v. County of Box Butte, 169 Neb. 311, 99 N.W.2d 245.' ......
  • Dietz v. State, 33352
    • United States
    • Supreme Court of Nebraska
    • July 3, 1953
    ...be fitted except for the injury, is totally disabled within the meaning of the workmen's compensation law.' See, also, Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833. In that connection, also, it is the rule that an employee who has established by a preponderance of the evidence that he ha......
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