Klement v. H.P. Lau Co.

• Decision Date: 24 May 1940
• Docket Number: 30875.
• Parties: KLEMENT v. H. P. LAU CO. ET AL.
• Court: Nebraska Supreme Court

292 N.W. 381

138 Neb. 144

KLEMENT v. H. P. LAU CO. ET AL.

No. 30875.

Supreme Court of Nebraska.

May 24, 1940

Syllabus by the Court.

1. Award of compensation for 300 weeks for a permanent partial disability of 35 per cent. caused by an accidental injury arising out of and in the course of a traveling salesman's employment by a wholesale grocer affirmed as supported by the evidence.

2. Mere suspicion that an employee simulated an automobile accident for the purpose of procuring workmen's compensation is not sufficient to defeat a claim therefor, where the suspicion arises alone from his recovery of compensation for two former accidents of a similar nature.

3. Fee for $150 for employee's attorneys in a proceeding to recover workmen's compensation held not excessive on facts stated in opinion.

Appeal from District Court, Nemaha County; Falloon, Judge.

Proceeding under the Workmen's Compensation Law by Miles S. Klement claimant, opposed by the H. P. Lau Company, employer, and the Maryland Casualty Company, insurance carrier. From an adverse judgment, the employer and insurance carrier appeal.

Affirmed.

Herbert E. Story and John H. Roper, Jr., both of Omaha, for appellants.

Hawxby & Griffiths and Lee Kelligar, all of Auburn, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ.

ROSE Justice.

This is a proceeding under the workmen's compensation law. Comp.St.1929, sec. 48-101 et seq.

Miles S. Klement, plaintiff, a traveling salesman in the employ of H. P. Lau Company, defendant, presented by petition to the compensation court a claim for an injury in the sacroiliac region of his back as the result of an automobile accident while in the performance of his duties as employee February 3, 1939. He sued also the Maryland Casualty Company, insurance carrier, defendant, alleged his wages at the time were $200 a month and claimed compensation of $15 a week.

The answer of defendants to the petition was a general denial.

Upon a trial of the cause, the compensation court found that plaintiff, as a result of the accident February 3, 1939, sustained a permanent partial disability; that his disability thereafter was 50 per cent. and compensable at $15 a week, but that he had entered into a duly approved lump-sum settlement, September 27, 1935, with a former employer for a 15 per cent. permanent partial disability caused by accidental injury to his back and that consequently his compensation was limited to a 35 per cent. permanent partial disability as a result of the accident February 3, 1939, or $5.25 a week. The award of the compensation court conformed to its findings and was reviewed and affirmed by the district court, where plaintiff's attorneys were allowed $150 for their services. Defendants appealed to the supreme court.

Defendants contend that plaintiff did not prove a compensable injury as the result of an accident arising out of and in the course of his employment as a traveling salesman for his employer, a wholesale grocer. The claim of plaintiff is also assailed as fraudulent and, in the argument on this defense, defendants emphasize the fact that plaintiff had previously entered into a lump-sum settlement with a former employer for three accidental injuries, two of which are asserted to be identical with the accident described in the case at bar. There is little dispute in the testimony relating to material facts, but the evidence is too voluminous for detailed discussion herein. None of it has been overlooked. It tends to prove the following facts:

Traveling by automobile as salesman and collector for H. P. Lau Company, plaintiff, in the performance of his duties as such was crowded by another car as he approached a narrow bridge on a highway about four miles west of Auburn in the early morning of February 3, 1939. Plaintiff's car was damaged as the front end struck the right side of the bridge, but could still be operated. His back was injured and he suffered pain, but was able to drive to a hospital at Auburn, where Dr. F. M. Tushla examined him and taped his back for an injury in the sacroiliac region where ligaments had been strained. About noon plaintiff appeared at a garage in College View and there exchanged the car he had been driving for one he had left there for repairs. The garage owner commented on the damages to the car and on the appearance of injury to plaintiff, who called in the afternoon at the office of his employer in Lincoln and there told the sales manager of the accident and of resulting personal...