Hammond v. Keim

• Citation: 258 N.W. 478,128 Neb. 310
• Decision Date: 30 January 1935
• Docket Number: 29183.
• Parties: HAMMOND ET AL. v. KEIM ET AL.
• Court: Nebraska Supreme Court

258 N.W. 478

128 Neb. 310

HAMMOND ET AL. v. KEIM ET AL.

No. 29183.

Supreme Court of Nebraska.

January 30, 1935

Syllabus by the Court.

1. When an employee abandons his job and takes another, and while going to get his tools from the old job is killed, recovery cannot be had from his former employer under the Workmen's Compensation Act, where such employer had no duty or obligation in connection with the return of such tools.

2. If the employee's private business creates the necessity for a trip which would not have been undertaken otherwise, injury occurring on such trip is not compensable even though at the time he was doing an errand for his former employer, such fact being but incidental to, and not the primary purpose of, the trip.

Appeal from District Court, Lancaster County; Broady, Judge.

Proceedings under the Workmen's Compensation Act by Delmar W Hammond, guardian and next friend of Thelma Lindquist, and others to recover compensation for the death of Ed Lindquist opposed by Jacob Keim, doing business as the Keim Construction Company, and the United States Fidelity & Guaranty Company. From a judgment of the district court, on appeal from the compensation commissioner, granting compensation, the opponents appeal.

Judgment reversed, and action dismissed.

Sanden, Anderson & Gradwohl, of Lincoln, for appellants.

Lester L. Dunn and Max Towle, both of Lincoln, for appellees.

Heard before GOSS, C. J., and GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and CHAPPELL, District Judge.

PAINE Justice.

This is a suit in which Delmar W. Hammond, as guardian and next friend, seeks to recover under the Workmen's Compensation Law for the death of his father-in-law.

Immediately prior to May 26, 1930, on which date he received injuries which resulted in his death, Ed Lindquist, hereinafter called the deceased, had been employed by Jacob Keim, doing business as Keim Construction Company, in superintending the construction of a building at Tecumseh, Nebraska, for which he was being paid $1.50 an hour. Deceased was a widower, and left one adult son and an adult daughter, being the wife of the plaintiff, two minor sons, and three minor daughters.

It is unusual to find the facts so little in dispute as they are in this case. On Saturday, May 24, 1930, shortly after noon, the deceased, with two other employees, George Holstein and Robert E. Lee, who also lived in Lincoln, left Tecumseh for Lincoln, where the three were to spend their week-end. Monday morning the deceased informed the other two that he had taken a new job of the construction of a building for Freadrich Brothers at University Place, which job he was to begin at once. He directed Holstein to take his place in completing the building at Tecumseh for the defendant, turning over to Holstein at the same time the defendant's books that he kept as foreman. He notified Lee that he wanted to employ him to start to work with him at once upon this new job at University Place, and Lee accepted. He stated that he would go right at this new job, and would drive at once to Tecumseh to get his mortar-boxes, shovels, wheelbarrow, and tools, and bring them all back to University Place. Deceased got some rope, which he would need to tie the mortar-boxes onto the truck, and took a truck which he had contracted to buy. Before the deceased had left Tecumseh on Saturday afternoon, Jacob Keim, the defendant, had said that he would like to have certain stair-railing, and also some muriatic acid to wash down and clean the walls of the building about completed, and Keim had requested that the stair-railing and acid be ordered to be shipped by freight from Lincoln, the acid not being needed until late the following week. Lee ordered the stair-railing shipped by freight, and Holstein, who was to take the place of the deceased on the Tecumseh job, decided to drive his own car to Tecumseh, so he would have it to return when he had finished the job, and would have taken the acid down to Tecumseh in his own automobile, but, as it was a new car, and the upholstery would be ruined if the acid splashed, it was finally decided, as the deceased had to go down with his truck to get his tools, to load the jug of acid into the truck of the deceased.

After ordering the stair-railing at the Hedges foundry, the parties started for Tecumseh, with Holstein in his own car, accompanied by the deceased, and Lee driving the truck in which Mr. Conner also rode. The deceased said they were driving his truck too fast, and had Holstein overtake them just out of Bennet, and the deceased then " bawled" Lee out for driving the truck too fast, and Lee then transferred to the car and deceased rode in the truck, with Conner behind the wheel, the truck following the car. The car and truck soon passed a road maintainer, and in getting back toward the center of the road the truck suddenly went in the ditch and rolled over. The deceased was injured, and was brought to a hospital in Lincoln, where he died.

Jacob Keim testified that he did not request the deceased to bring the acid to Tecumseh, but asked him to have it shipped to Tecumseh, and testified further that the deceased had nothing to do with furnishing material or delivering material, and that all of the other material for the job had been shipped down, and nothing had been hauled by the deceased.

It is insisted by appellants that a compensable injury can only arise while a workman is engaged in or about the premises where his duties are being performed, or where his service requires him to be at the time of the injury and during the hours of service as such workman, and that the accident must arise out of and in the course of the workman's employment. Comp. St. 1929, § 48-109.

" Personal injuries arising out of and in the course of employment" covers workmen only when engaged in, on, or about the premises where their duties are being performed, or where service requires their presence during their hours of service as such workmen. Comp. St. 1929, § 48-152.

Many cases can be found in other states which...