Herrmann v. Franlkin Ice Cream Company
| Decision Date | 19 March 1926 |
| Docket Number | 24834 |
| Citation | 208 N.W. 141,114 Neb. 468 |
| Parties | LEWIS H. HERRMANN, APPELLANT, v. FRANLKIN ICE CREAM COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: MASON WHEELER JUDGE. Reversed.
REVERSED.
T. J Madden, Harry R. Freeman, Claude S. Wilson and Albert S Johnston, for appellant.
Reavis & Beghtol and Wilson Overall, contra.
Heard before MORRISSEY, C.J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
Action by an employee to recover for personal injuries, alleged to have been caused by the negligence of his employer. Defendant is a Nebraska corporation, with its principal place of business in the city of Lincoln. It also operates a plant in Kansas City, Missouri. Plaintiff is a resident of Missouri and sustained the injuries, of which he complains, while in the employ of defendant in its plant at Kansas City. The action was brought in Lancaster county, Nebraska, where the defendant has its principal place of business. Defendant filed objections to the jurisdiction of the court over the subject of the action, which were sustained, and the action was dismissed with prejudice to a future action in this state. Plaintiff appeals.
The objections to jurisdiction are two-fold: (1) That a common-law action for personal injuries, resulting from negligence of an employer, is prohibited by statute and contrary to the public policy of this state; (2) that Nebraska courts are vested with a discretion to entertain or decline to entertain jurisdiction of an action, brought by a nonresident, where a trial in Nebraska would put the defendant to great and unnecessary expense and inconvenience.
The basis for the first ground of objection to jurisdiction is that the state of Nebraska, by enacting its workmen's compensation law, thereby abrogated the common-law action for personal injuries to an employee arising out of, and in the course of, his employment, and has thereby limited the employee's relief to that provided for by the compensation act, and that it is contrary to the declared public policy of this state to permit such action as plaintiff has brought to be maintained in the courts of the state.
The common-law action by an employee against his employer for personal injuries, arising out of, and in the course of, his employment, though resulting from the negligence of the employer, no longer exists in this state, where the employee and the employer are subject to and governed by the workmen's compensation act. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659. But this applies only to such employees as come under, and are subject to, the provisions of the compensation act. The compensation act, however, does not apply to all employees. Certain classes of employees and employers are, by the terms of the statute, expressly exempted from its operation. The act permits employers and employees to elect not to be bound by its provisions. The common-law action for personal injuries, occasioned by the negligence of the employer, therefore remains to all employees who are not subject to the provisions of the compensation act, whether exempted from its operation by statute or because of election not to be bound by its provisions. It cannot be strictly said, therefore, that the common-law action for an injury to an employee, occasioned by negligence of the master, has been abolished in this state. An action for personal injuries is transitory and, ordinarily, may be brought wherever service may be had upon the defendant. When such an action has been brought in this state on a cause of action accruing under the laws of a sister state, and jurisdiction of the defendant obtained by the service of process, it may be maintained, unless contrary to the public policy of this state, or contrary to abstract justice, good morals, or calculated to injure the state or its citizens. In such cases, the right to recover is governed by the lex loci and not by the lex fori. Under the principles of comity, the courts of one state will recognize and enforce rights arising in another state, unless recognition thereof would be contrary to the laws or public policy of the state in which such enforcement is sought. 15 C.J. 1181, sec. 655.
It appears that, at the time plaintiff sustained the injuries of which he complains, Missouri had no workmen's compensation law, and that plaintiff could have maintained in the courts of that state such an action as in the instant case. He had a right of action which was enforceable in Missouri. Such action not being contrary to the laws of our state and not being contrary to public policy or good morals, it follows that the action may properly be maintained. The identical question has been before the supreme court of Washington, in Reynolds v. Day, 79 Wash. 499, 140 P. 681, L. R. A. 1916A, 432. It was there held that the common-law action for an injury to an employee in another state is not prevented by the fact that the statute of Washington has abolished actions for such injuries and has provided, instead, a system of industrial insurance. See, also, Herrick v. Minneapolis & St. L. R. Co., 31 Minn. 11, 16 N.W. 413; Northern P. R. Co. v. Babcock, 154 U.S. 190, 38 L.Ed. 958, 14 S.Ct. 978; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 44 L. R. A. 410, 52 N.E. 951. The rule applies even though the plaintiff could not have maintained the action, had the injury occurred in the state where the action was brought. Walsh v. New York & N. E. R. Co., 160 Mass. 571, 39 Am. St. 514, 36 N.E. 584.
Defendant cites and relies upon Hagenback & Great Wallace Show Co v. Randall, 75 Ind.App. 417, 126 N.E. 501, and American Radiator Co. v. Rogge, 86 N.J.L. 436, 92 A. 85, as sustaining its contention. A careful examination of the opinion in these cases discloses that they are not contrary to the views heretofore expressed in this opinion. In the Indiana case, the servant entered into a contract with the master in the state of Ohio, to work for the defendant in the various states of the Union, and in the contract of employment was a provision that all matters relating to the contract of employment or actions sounding in tort between the parties should be governed by the laws of the District of Columbia. Defendant was an Indiana corporation, and while the employee was working for the defendant in the state of Indiana he met with an accident, in which he lost his life. A dependent relative of the workman sought and obtained allowance of compensation under the workmen's compensation law of the state of Indiana. The court held that the contract, entered into in Ohio and contemplating that work should be done in the state of Indiana, was not binding and would not be enforced in the state of Indiana, contrary to the provisions of its compensation law. A similar ruling was made in the New...
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