Haler v. Gering Bean Co., No. 34045

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; WENKE
PartiesCarl HALER, Jr., Appellee, v. GERING BEAN COMPANY and Ted Baum Company and the Fidelity and Casualty Company of New York, Appellants.
Decision Date15 February 1957
Docket NumberNo. 34045

Page 152

81 N.W.2d 152
163 Neb. 748
Carl HALER, Jr., Appellee,
v.
GERING BEAN COMPANY and Ted Baum Company and the Fidelity and Casualty Company of New York, Appellants.
No. 34045.
Supreme Court of Nebraska.
Feb. 15, 1957.

Page 153

Syllabus by the Court

1. The applicable rule of construction of the Workmen's Compensation Act is that it be liberally construed to the end that its beneficent purposes may not be thwarted by technical refinement of interpretation.

2. For workmen's compensation purposes 'total disability' does not mean a state of absolute helplessness. It 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.

3. 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

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for the injury, is totally disabled within the meaning of the workmen's compensation law.

4. A claimant for compensation under subdivision (3) of section 48-121, R.R.S.1943, who through an injury has suffered a permanent partial loss of the use or function of two members, is entitled to recover such proportion of the compensation allowed for total disability under subdivision (1) of said section as the extent of his loss would bear to the total loss of such members.

5. It was clearly the intent of the Legislature in establishing a schedule of benefits for the specific injuries listed in subdivision (3) of section 48-121, R.R.S.1943, to fix the amount of such benefits without regard to the extent of the subsequent disability with respect to the particular work or industry in which the employee was engaged at the time of his injury.

6. However, where an employee has suffered a schedule injury to some particular member or members and some unusual and extraordinary condition develops therefrom as a result thereof, which condition affects some other member or the body itself, an increased award is proper and should be made to cover such additional disability.

7. Where an employer appeals to the district court and fails to obtain a reduction of the award of the compensation court, the employee is entitled to an allowance of an attorney's fee. But if, on appeal to the Supreme Court, it is determined that the award of the district [163 Neb. 749] court was erroneous and that a decree reducing the award of the compensation court should have been entered, any allowance of an attorney's fee by that court is erroneous.

Jack E. Lyman, Marvin L. Holscher, Scottsbluff, for appellants.

Townsend & Youmans, Scottsbluff, for appellee.

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

WENKE, Justice.

This is a workmen's compensation case appealed from the district court for Scotts Bluff County. Appellee, Carl Haler, Jr., originally filed a petition in the Nebraska Workmen's Compensation Court stating that while he was employed as a common laborer by the appellants Gering Bean Company and Ted Baum Company he received, on or about February 19, 1952, personal injuries arising out of an accident that happened in the course of that employment. He therein set forth the extent of the injuries sustained and then asked for such relief as, under the provisions of the workmen's compensation law, he might be entitled to by reason thereof. Under his prayer appellee was entitled to receive whatever relief the facts established would entitle him to under the compensation law. As this court has often stated: 'The applicable rule of construction is that the Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinement of interpretation.' Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833, 838.

The claim was tried to a judge of the compensation court who found for appellee and awarded him the following relief: The sum of $26 per week for a period of 85 3/7 weeks, the sum of $15 per week for 214 4/7 weeks, and thereafter the sum of $12 per week for the [163 Neb. 750] balance of his life, credit being given for payments already made. Appellant the Fidelity and Casualty Company of New York is the workmen's compensation carrier for appellee's employers.

Page 155

Appellants thereupon waived rehearing before the compensation court and appealed directly to the district court for Scotts Bluff County, that being the county in which the accident happened. Trial was had in the district court and the trial judge thereof found that appellee had been totally and permanently disabled as a result of injuries suffered from the accident and awarded him, because thereof, $26 per week for 300 weeks commencing on February 19, 1952, and $20 per week for the rest of his life. Since appellee had been paid $26 per week for the period from February 19, 1952, to August 18, 1953, totalling $2,028, the appellants were given credit for that amount. In addition thereto appellants were ordered to pay to Dr. S. P. Wiley the sum of $531 and an attorney's fee of $500.

Appellants filed a motion for new trial and, from the overruling thereof, perfected this appeal. The action is for review here de novo.

The evidence shows that immediately prior to and on February 18, 1952, appellee was employed by both appellants Gering Bean Company and Ted Baum Company as a common laborer; that on that date, while stooped over scooping beans, a stack of 100-pound bags of beans beside which he was working accidentally fell over onto him striking him first in the middle of his back; that he was completely covered thereby; and that, as a result thereof, he was seriously injured. It is conceded by all the parties that plaintiff received his injuries as a result of an accident arising out of and in the course of his employment and that, at the time, his average weekly compensation was $48.

Dr. S. P. Wiley of Scottsbluff, who attended and examined appellee on February 19, 1952, in the West Nebraska Methodist Hospital in Scottsbluff, diagnosed his [163 Neb. 751] injuries to be as follows: An oblique comminuted fracture in front of the middle and upper two-thirds of the tibia and fibula of the right leg with the bones angulated in an outward direction at the fracture site and an extensive obliquely running comminuted fracture involving the distal half of the femur of the left leg. There was also a posterior displacement of the proximal end of the distal fragment and some posterior angulation through the fracture region as well as mild media angulation and a superficial laceration of the scalp, which took some 9 stitches to close.

Dr. Wiley testified he treated these fractures by the insertion of pins above and below the fracture sites and with pins and traction and later casted.

Appellee was released from the hospital on July 7, 1952, but was required to use crutches so the legs would not bear too much of his weight. On October 28, 1952, while still on crutches, appellee was examined by Dr. Samuel P. Newman in his office in Denver, Colorado. Dr. Newman's diagnosis of appellee at that time establishes there was a malunion of the fracture of his right tibia and fibula and the same of the lower third of his left femur. Appellee thereafter entered a Denver hospital and, on December 4, 1952, Dr. Newman operated on his right leg...

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20 practice notes
  • Hix v. Potlatch Forests, Inc., No. 9463
    • United States
    • United States State Supreme Court of Idaho
    • December 4, 1964
    ...241 Miss. 743, 133 So.2d 261 (1961); National Surety Corp. v. Martin, 86 Ga.App. 77, 71 S.E.2d 666 (1952); Haler v. Gering Bean Company, 163 Neb. 748, 81 N.W.2d 152 (1957); Barton v. Nevada Poultry Co., 253 Ia. 285, 110 N.W.2d 660 (1961), involved awards for total permanent disability for w......
  • Mead v. Missouri Val. Grain, Inc., No. 35924
    • United States
    • Supreme Court of Nebraska
    • March 26, 1965
    ...extent of the subsequent disability suffered with respect to the particular work or industry of the employee. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152; Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220. But, where an employee has suffered a schedule injury to some partic......
  • Jeffers v. Pappas Trucking, Inc., No. 40826
    • United States
    • Supreme Court of Nebraska
    • April 27, 1977
    ...Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). See, also, Runyan v. Lockwood Graders, Inc., supra; Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957); Burrious v. North Platte Packing Co., supra; Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431 The above case......
  • Runyan v. Lockwood Graders, Inc., No. 35656
    • United States
    • Supreme Court of Nebraska
    • March 20, 1964
    ...N.E. 511, which we approved in Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431, 299 N.W. 226, and Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152. The rule stated in these cases is: Where an employee has suffered a schedule injury to some particular member or members and ......
  • Request a trial to view additional results
20 cases
  • Hix v. Potlatch Forests, Inc., No. 9463
    • United States
    • United States State Supreme Court of Idaho
    • December 4, 1964
    ...241 Miss. 743, 133 So.2d 261 (1961); National Surety Corp. v. Martin, 86 Ga.App. 77, 71 S.E.2d 666 (1952); Haler v. Gering Bean Company, 163 Neb. 748, 81 N.W.2d 152 (1957); Barton v. Nevada Poultry Co., 253 Ia. 285, 110 N.W.2d 660 (1961), involved awards for total permanent disability for w......
  • Mead v. Missouri Val. Grain, Inc., No. 35924
    • United States
    • Supreme Court of Nebraska
    • March 26, 1965
    ...extent of the subsequent disability suffered with respect to the particular work or industry of the employee. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152; Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220. But, where an employee has suffered a schedule injury to some partic......
  • Jeffers v. Pappas Trucking, Inc., No. 40826
    • United States
    • Supreme Court of Nebraska
    • April 27, 1977
    ...Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). See, also, Runyan v. Lockwood Graders, Inc., supra; Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957); Burrious v. North Platte Packing Co., supra; Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431 The above case......
  • Runyan v. Lockwood Graders, Inc., No. 35656
    • United States
    • Supreme Court of Nebraska
    • March 20, 1964
    ...N.E. 511, which we approved in Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431, 299 N.W. 226, and Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152. The rule stated in these cases is: Where an employee has suffered a schedule injury to some particular member or members and ......
  • Request a trial to view additional results

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