Johansen v. Union Stockyards Co. of Omaha

• Decision Date: 05 February 1916
• Docket Number: No. 19457.,19457.
• Parties: JOHANSEN v. UNION STOCKYARDS CO. OF OMAHA, LIMITED.
• Court: Nebraska Supreme Court

99 Neb. 328

156 N.W. 511

JOHANSEN

v.UNION STOCKYARDS CO. OF OMAHA, LIMITED.

No. 19457.

Supreme Court of Nebraska.

Feb. 5, 1916.

Syllabus by the Court.

The Employers' Liability Act (Rev. St. 1913, §§ 3642-3696) defines the words “accident” and “injury” as used in that statute, and distinguishes between them. An accident produces “objective symptoms of an injury,” and an injury includes violence to the physical structure of the body and the natural results therefrom. Rev. St. 1913, § 3693b.

When an accident to an eye, which at first appears not serious, results, after a week or more, in a diseased condition of the eye which destroys the sight, the “injury occurred,” within the meaning of the statute, when the diseased condition culminated.

The district court cannot enter judgment for a “lump sum” under the Employers' Liability Act without the agreement of the parties.

Appeal form District Court, Douglas County; Sears, Judge.

Action under the Employers' Liability Act by Fred Johansen against the Union Stockyards Company of Omaha, Limited. From judgment for defendant, plaintiff appeals. Reversed and remanded.Mahoney & Kennedy and Guy C. Kiddoo, all of Omaha, for appellant.

Murphy & Winter, of South Omaha, for appellee.

SEDGWICK, J.

While the plaintiff was employed by defendant, he was injured by an accident which caused the loss of an eye. He brought this action in the district court for Douglas county under the Employers' Liability Act and obtained a judgment, from which the defendant has appealed.

The defendant presents two principal questions for our consideration: First, has there been a substantial compliance with section 3674 of the Revised Statutes? which provides: “No proceedings for compensation for an injury under this article shall be maintained, unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof; and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same.” Second, can the district court enter a judgment for a lump sum without an agreement of the parties to that effect?

[1][2][3] The plaintiff alleged in his petition that on the 18th day of December, 1914, he “was engaged as one of the men in putting the roofing on the hoghouse, one of the buildings being erected and constructed by the said company, and while so engaged, and while preparing a tar mixture and composition used in the construction of said roofing, by reason of the splashing of the hot tar mixture, a portion of which struck plaintiff in the left eye,” he lost the eye. He also alleged that the defendant company, in charge of the plant “in which plaintiff was working, knew of the injury and talked to the plaintiff about it, advising this plaintiff to go and consult a physician with reference to said injury,” and that the plaintiff lost the sight of his eye, “which loss of sight occurred on or about June 1, 1915,” and that “within six months after the occurrence of said injury the plaintiff herein made claim to defendant company for his compensation, as by law required.” This notification was in a letter written to the defendant by plaintiff's attorney and is conceded to be sufficient in form, but the defendant alleges that the notice was dated June 19, 1915, and was not within six months after the injury. It is conceded that the accident happened more than six months before this claim was made. The trial court found “that said accident resulted in a total disability to plaintiff on December 25, 1915.”

The statute defines the word “accident” and the word “injury” as used in the act and distinguishes between them:

“The word ‘accident’ as used in this article shall,...