Keenan v. Consumers Public Power Dist.

• Decision Date: 12 December 1949
• Docket Number: No. 32657,32657
• Citation: 40 N.W.2d 261,152 Neb. 54
• Parties: KEENAN v. CONSUMERS PUBLIC POWER DIST. et al.
• Court: Nebraska Supreme Court

Page 261

40 N.W.2d 261

152 Neb. 54

KEENAN v. CONSUMERS PUBLIC POWER DIST. et al.

No. 32657.

Supreme Court of Nebraska.

Dec. 12, 1949.

Syllabus by the Court.

1. By statute it is required that claims for personal injuries under the Workmen's Compensation Act shall be barred unless within one year after the accident the parties shall have agreed upon the compensation payable or one of the parties shall have filed a petition in the workmen's compensation court to determine the question of compensation.

2. By interpretation and application the limitation is extended to one year from the date of acquisition of knowledge of the injury where the injury is latent and progressive.

3. Where an employee suffers an injury, apparently slight, but which is progressive in course, the character of which is ascertainable only by medical men, and medical men are unable to ascertain it up to a certain time, the statute of limitations applying to workmen's compensation actions does not begin to run until it is ascertained.

Kirkpatrick & Dougherty, York, for appellants.

Keenan & Corbitt, Geneva, for appellee.

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

YEAGER, Justice.

This is an action under the Workmen's Compensation Act by Joe Keenan, plaintiff and appellee, against Consumers Public Power District, a corporation, and United States Fidelity & Guaranty Company, the insurance carrier, defendants and appellants, for workmen's compensation claimed to be due on account of an accident and injury sustained by plaintiff on July 16, 1946, while he was employed by the defendant Consumers Public Power District. The claim is solely and alone for hospital and doctors' bills. For convenience the Consumers Public Power District will be hereinafter referred to as the company.

The case was tried first by one judge of the compensation court where the judgment was in favor of the defendants. Appeal was taken to the district court where the cause was tried. An award and judgment was rendered in favor of plaintiff for $512.95 and costs, and an attorney's fee in the amount of $100. Motion for new trial was filed which was overruled whereupon the defendants appealed to this court.

Numerous assignments of error are set out but all of them do not require separate consideration. Only those having pertinence to the determination of the questions involved will be mentioned.

On July 16, 1946, plaintiff was in the employ of the company. On that date on behalf of the company he went to an oil station referred to in the record as the Baumann bulk plant at Grafton, Nebraska, to change an electric service for a pump. The electric line to the pumps carries 220 volts. Plaintiff proceeded to cut the line with a pair of pliers. In doing so he got a severe electric shock. As a result he fell to the ground and for a time was unconscious or partially so. He went to a doctor and thereafter stayed at home for a new days. He lost no pay however on account of time away from work. Thereafter he went to the doctor once or twice. Following the accident nervousness developed, he began losing sleep, and he lost appetite. This condition grew steadily worse until in January 1947 when he fell and was unconscious for a period of time. Following this the doctor who had treated him at the time of the accident came to the house. He appears to have been under the care of this doctor from then on until about September 1947. He had other seizures of unconsciousness, the number of which is not made certain. Between January and April of 1947 he complained to representatives of the company and expressed to them his belief that his condition was a result of the accident. In April of 1947 the company sent him to a Dr. Welch who made an examination. Dr. Welch gave no testimony but it appears from the testimony of other witnesses given without objection that Dr. Welch reported that there was no relation between the accident and plaintiff's condition. The doctor who treated him at the time of the accident and cared for him thereafter was unable to determine whether or not there was a relation between the accident and the later condition so he advised plaintiff to see another doctor. In September 1947 plaintiff submitted himself to Dr. Stein, a psychiatrist of Lincoln, Nebraska. Dr. Stein took a history which included the accident and subsequent events and gave it as his opinion that the condition of plaintiff was a result of the accident. This opinion is in the evidence adduced by plaintiff on the trial of this case. He treated plaintiff who readily responded to the treatment. The treatment appears to have been completely successful.

In their assignments of error the defendants urge that the court erred in permitting the plaintiff to change his petition in the district court and present an issue there different from those tried in the compensation court. The substance of the contention is that the petition filed in the workmen's compensation court together with the date of filing disclosed the commencement of an action which was barred by the appropriate statute of limitation, whereas the petition in the district court showed the same facts but pleaded other facts which negatived the operation of the statute of limitation against the claim. Factually the contention of the defendants in this respect is correct. The accident occurred on July 16, 1946, and the action was commenced December 20, 1947. The commencement of the action was more than one year from the date of the accident.

Section 48-137, R.S.1943, provides: 'In case of personal injury, all claim for compensation shall be forever barred unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this act, or unless, within one year after the accident, one of the parties shall have filed a petition as provided in section 48-173.' The petition therefore was on its face demurrable but the defendant did not demur. It raised the question by answer.

Thus the question became an issue in the workmen's compensation court and the parties presumptively tried the question as an issue there. Under law it was a determinable issue.

This court has held that the literal limitation of the statute has no application where the injury is latent and progressive and the employee is without knowledge of the condition. In such case the action may be brought within one year from the time knowledge is obtained. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615; City of Hastings v. Saunders, 114 Neb. 475, 208 N.W. 122; Travelers Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449; Astuto v. V. Ray Gould Co., 123 Neb. 138, 242 N.W. 375; Marler v. Grainger Bros., 123 Neb....