Gale v. Krug Park Amusement Company

Decision Date03 March 1926
Docket Number25172
Citation208 N.W. 739,114 Neb. 432
PartiesELIZA N. GALE, APPELLEE, v. KRUG PARK AMUSEMENT COMPANY, APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Reversed and dismissed.

Judgment reversed and action dismissed.

McGilton & Smith, for appellant.

Jesse L. Root and Herman E. Kuppinger, contra.

Heard before MORRISSEY, C.J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

THOMPSON, J.

This action was instituted by Eliza N. Gale, widow of Charles S. Gale, deceased, hereinafter called plaintiff, against the Krug Park Amusement Company, a corporation, hereinafter called defendant, before the compensation commissioner, to recover compensation in the sum of $ 15 a week for 350 weeks, beginning on the 3d day of June, 1925, and hospital and burial expenses, together with attorney's fees. The issues were duly joined, and trial had before the commissioner, and the claim allowed and ordered paid as prayed. An appeal was taken by the defendant to the district court for Douglas county, where issues were joined and trial had, resulting in an affirmance of the finding and judgment of the compensation commissioner. To reverse this judgment, the defendant appeals.

It is conceded by defendant that the deceased received the injuries complained of by plaintiff, and that his death resulted therefrom; and that such injuries were received during the course of his employment; and further conceded that the deceased's average earnings at the time of receiving such injuries were $ 44 a week. However, recovery is challenged for the reason that the injuries did not arise out of or by reason of such employment. Defendant contends that the injuries were caused solely by an act of God, and therefore non-compensable under our compensation act.

The record discloses the following facts: That the deceased, prior to the injuries complained of, was employed by defendant to paint certain buildings in the park, the latter furnishing the material and paying deceased for his labor the sum of $ 44 a week; that deceased entered upon his duties, and on June 3, 1925, he and another employee, who was assisting him, had finished painting a building at about 3:20 p. m. (at which time a storm was indicated by darkness and dust-laden clouds); that deceased and his helper went to and into the building in question, where the paints for their use were stored; that this building, an ordinarily substantial one of its kind, faced the south, with doors, windows, and an open porch to the south, was about 14 feet in width and from 44 to 46 feet in length, was of frame type, with L-shaped roof, the longer slant being to the south, was constructed out of shiplap one inch thick, and the studdings and rafters were mostly 2 by 4 timbers, some 2 by 6; as to the floor, some say it was one-inch material, and others say two-inch material; the roof was one-inch shiplap covered with paper; the building was set on a wood block foundation and was divided into six or seven compartments; that, as deceased and his helper were placing their paint utensils on the floor of this building, the storm, then of abnormal force and destructive violence, coming from the south, struck that part of the park and the building in question, and threw the latter with great force, some say against a tree about 30 feet distant, others say that the building was thrown so that it rested upside down; that deceased was found in a very short time lying in a gutter some distance north and east of where the building lay, unable to get up and calling for help; that his helper was thrown some distance from him, but not so far from the building; that the two men were picked up and carried to a hospital; that deceased was found to have sustained a broken arm, internal injuries, bruises about the head and face, from which injuries he died on June 5, 1925. It is further shown by the record that this storm covered a territory about five miles in length and two miles in width, and within this territory was a strip one-fourth to one-half mile in width and about five miles in length which suffered the most damage; that in this strip of land, in area of two or three blocks, much damage was done to trees and buildings; that, within the park, trees 18 inches in diameter, perhaps a dozen or more, located close to the approach to the building, were broken off like match sticks; roofs and porches were torn away from houses; telephone and telegraph poles were broken off; chimneys thrown down; trees uprooted and others broken off; that Krug Park was in the direct path of the most violent and destructive part of the storm.

The only question for us to determine is: Did the injuries which caused the death of Mr. Gale arise out of the employment within a liberal interpretation of our compensation act, remembering that this act provides that the injury, in order to give rise to a cause of action, must be one which not only arises in the course of the employment, but also arises out of the employment? These two propositions must be present in order that recovery may be had. In Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509, it was held: "An employee is not entitled to compensation for injury under the employers' liability act unless the accident which caused the injury happened in...

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