Goodwin v. Omaha Printing Company

• Decision Date: 05 June 1936
• Docket Number: 29817
• Citation: 267 N.W. 419,131 Neb. 212
• Parties: MABEL GOODWIN, APPELLEE, v. OMAHA PRINTING COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

267 N.W. 419

131 Neb. 212

MABEL GOODWIN, APPELLEE, v. OMAHA PRINTING COMPANY ET AL., APPELLANTS

No. 29817

Supreme Court of Nebraska

June 5, 1936

APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The shooting of a traveling salesman by a highwayman, while driving from one town to another in furtherance of the business of the employer, arises out of the employment within the meaning of section 48-110, Comp.St.1929, providing for compensation for injury or death by accident arising out of and in the course of the employment.

Appeal from District Court, Douglas County; Dineen, Judge.

Suit under the Workmen's Compensation Act by Mabel Goodwin, claimant, for the death of her husband, Russell Goodwin, employee, opposed by the Omaha Printing Company, employer, and the Employers Liability Assurance Corporation, Limited, of London, England, insurance carrier. From a judgment awarding compensation, employer and insurance carrier appeal.

Affirmed.

Kennedy, Holland, DeLacy & Svoboda, for appellants.

Smith & Schall and Gerald M. Vasak, contra.

Heard before GOSS, C. J., ROSE, GOOD, DAY, and CARTER, JJ., and KROGER and IRWIN, District Judges.

OPINION

CARTER, J.

This suit was instituted by Mabel Goodwin to recover compensation for the death of her husband, Russell Goodwin, under the workmen's compensation law of this state. From a judgment awarding the compensation, the defendants have appealed.

The record discloses that Russell Goodwin, at and prior to his death, had been employed by the Omaha Printing Company of Omaha, Nebraska, as a salesman. It was his duty to call on and sell to various county officers in the state of Nebraska. He had been in the employ of the Omaha Printing Company for 15 years and, at the time of his death, was receiving wages in the amount of $ 45 a week. He used his own automobile in connection with his work and received five cents a mile from the Omaha Printing Company for the use thereof.

It further appears that on the morning of September 6, 1934, the deceased conferred with the officers of the Omaha Printing Company, after which he started in his automobile for Columbus for the purpose of interviewing one of the county officials of Platte county on behalf of the Omaha Printing Company. He had with him in the car his own personal baggage, some canned goods and groceries which he had purchased for his own use, and two portfolios and a sample kit of printing supplies belonging to the Omaha Printing Company which he used in connection with his duties as a salesman.

About ten miles west of Omaha, he permitted one Harold Malmberg to ride in the car with him. At a point four miles west of Schuyler, Nebraska, Malmberg asked to be let out of the car so that he could go north from that point. After the car was stopped, Malmberg drew a gun and ordered Goodwin out of the car. As Goodwin was leaving the car, Malmberg shot him and left him lying in the road. Malmberg took the car and its contents and drove away. Goodwin suffered injuries from which he died. Malmberg was captured and is now serving a life sentence in the penitentiary for murder. The only issue before the trial court was whether or not Russell Goodwin died as a result of injuries received in an accident arising out of and in the course of his employment by the Omaha Printing Company.

It is not disputed that Goodwin died as a result of an accident within the meaning of section 48-152, Comp. St. 1929. Neither is it contended that the accident was not in the course of the employment. The question to be determined is whether the accident arose out of the employment.

The case of City of Fremont v. Lea, 115 Neb. 565, 213 N.W. 820, was one where compensation was allowed for the death of a fireman who was accidentally shot with a toy cannon in the hands of other firemen on the streets of Hastings while attending a state firemen's convention. In that case the court said: "It is insisted, however, that the accident occurred upon the public streets of Hastings and that the danger created by the accidental discharge of the cannon was one to which the public, generally, was exposed, and not one which arose out of, or was inherent in, Lea's employment. Under the facts in this case, the question here raised is foreclosed by our previous decision. Even though the accident be sustained by reason of risk incidental to the streets, the accident, under the circumstances of this case, arises out of, as well as in, the course of his employment. Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191." The court also cited with approval the case of Dennis v. A. J. White & Co. (1917) A. C. (Eng.) 479, Ann. Cas. 1917E, 325, in which the court said: "Where a workman is sent into the streets on his employer's business, whether habitually or occasionally, and whether on foot or on a bicycle, or on an omnibus or a car, and he meets with an accident by reason of a risk of the streets to which his employment exposes him, the accident arises out of as well as in the course of his employment; and it is immaterial that the risk which caused the accident is one which is shared by all members of the public using the...