Krajeski v. Beem
| Decision Date | 30 October 1953 |
| Docket Number | No. 33428,33428 |
| Citation | 60 N.W.2d 651,157 Neb. 586 |
| Parties | KRAJESKI v. BEEM et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The limitation prescribed for the filing of a petition by an employee under section 48-137, R.R.S.1943, is tolled as long as such employee is under legal disability and, as to a minor employee, it does not begin to run until he becomes of age.
2. Section 48-132, R.R.S.1943, is a permissive statute and failure of either a guardian or next friend to bring an action thereunder in behalf of a minor employee does not preclude such employee from asserting his rights under section 48-137, R.R.S.1943, within 1 year after becoming of age.
3. An employer who attempts to avoid liability on the ground that employee was willfully negligent must prove a deliberate act knowingly done, or at least such conduct as evidences a reckless indifference to his safety.
4. 'Reckless indifference to safety,' as used in the workmen's compensation law, subdivision (7) of section 48-151, R.R.S.1943, means more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in degree, a willingness to take a chance.
Charles A. Fisher, Chadron, George N. Mecham, Omaha, for appellants.
William B. Quigley, Valentine, Davis, Healey, Davies & Wilson, Lincoln, for appellee.
Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a workmen's compensation claim instituted in the Nebraska Workmen's Compensation Court by appellee Richard Krajeski against appellants Roy Beem, doing business as Beem Transport Company of Chadron, Nebraska, and St. Paul Mercury Indemnity Company. From a finding for claimant by that court on rehearing, and an allowance of compensation in accordance therewith, appeal was taken to the district court for Lancaster County pursuant to the provisions of section 48-186, R.R.S.1943, the accident out of which the injuries arose having occurred in South Dakota. The district court affirmed the award of the compensation court. This appeal was taken therefrom after a motion for new trial had been filed and overruled. The appeal will be considered here de novo on the record. See, Rahfeldt v. Swanson, 155 Neb. 482, 52 N.W.2d 261.
Appellee, whom we shall herein refer to as claimant, started working for appellant Roy Beem, whom we shall herein refer to as Beem, on June 1, 1949, as an oil transport driver. He was then 19 years of age, having been born on March 3, 1930. The accident, out of which the injuries arose for which compensation has been allowed, happened on September 26, 1949. It occurred on State Highway No. 87 at a point about 8 miles south and east of Edgemont, South Dakota. At the time of the accident claimant was driving east. He was driving a WB-28 White semi-trailer transport loaded with 5,600 gallons of crude oil. This oil was being hauled from Newcastle, Wyoming, to Chadron, Nebraska, via Edgemont, South Dakota.
Appellants contend the court erred in holding that claimant, a minor, was legally permitted to work under the laws of Nebraska so as to bring him under the provisions of the Workmen's Compensation Act. Subdivision (2) of section 48-115, R.R.S.1943, of the act provides, in this respect, as follows: 'Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106, under any contract of hire, expressed or implied, oral or written, * * * including minors who are legally permitted to work under the laws of the state, who for the purpose of making election of remedies under this act shall have the same power of contracting and electing as adult employees.'
This contention is based on the following language of section 66-522, R.R.S.1943: 'No vehicle, for which a permit has been issued under the provisions of sections 66-516 to 66-518, shall be operated on the highways of this state unless it be manned by a driver * * * more than twenty-one years of age and less than sixty years of age, authorized and qualified to operate motor vehicles under the laws of this state as now or hereafter enacted.'
We have carefully examined the provisions of the statutes to which this statute refers and have come to the conclusion that it has no application to the hauling of crude oil. It should be understood that we are not herein in any manner passing on the question of a minor's rights under the Workmen's Compensation Act if and when a claim is made based on employment that is expressly prohibited by any law of this state because of the claimant's age.
It is contended that the petition was not filed within time. The accident happened on September 26, 1949. Claimant became 21 years of age on March 3, 1951. He filed his petition in the Workmen's Compensation Court on May 14, 1951. Section 48-133, R.R.S.1943, provides, insofar as here material, as follows: 'No proceedings for compensation for an injury under this act shall be maintained unless a notice of the injury shall 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, or in case of death of the employee, or in event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity * * * Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.'
Beem knew of the accident on the day it happened and on the following day brought claimant to Chadron from the hospital at Edgemont, South Dakota, where he had stayed over night under a doctor's care. There is evidence that sometime about the middle of October, following the accident, claimant came to Chadron to see Beem for the purpose of making a claim for compensation because of the injuries he had suffered in the accident but, because of certain statements made by Beem, did not do so in written form. We think the factual situation as to notice brings this case within a situation to which the last sentence of the quoted statute has application.
With reference to the time for filing a petition in the Workmen's Compensation Court in case of a dispute, which section 48-173, R.R.S.1943, provides may be done by either party, section 48-137, R.R.S.1943, provides:
The legal disability of a minor would, of course, continue until he reached maturity. Claimant became of age on March 3, 1951. Section 48-132, R.R.S.1943, provides: 'If an injured employee is mentally incompetent or is a minor at the time when any right or privilege accrues to him under this act, his guardian or next friend may, in his behalf, claim and exercise such right or privilege.
This is a permissive statute and failure of either a guardian or next friend to bring an action thereunder in behalf of a minor employee would not preclude such employee from asserting his rights under section 48-137, R.R.S.1943, within 1 year after becoming of age.
We hold the limitation prescribed for the filing of a petition by an employee under section 48-137, R.R.S.1943 , is tolled as long as such employee is under legal disability and, as to a minor employee, it does not begin to run until he becomes of age even though section 48-132, R.R.S.1943, provides such a suit may be brought by his guardian or next friend while he is under such disability.
Section 48-109, R.R.D.1943, provides: 'If both employer and employee become subject to sections 48-109 to 48-147, both shall be bound by the schedule of compensation provided in section 48-121, which compensation shall be paid in every case of injury or death caused by accident or occupational disease arising out of and in the course of employment, except accidents caused by, or resulting in any degree from the employee's willful negligence as defined in section 48-151.'
In such case, section 48-127, R.R.S.1943 provides: 'If the...
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...as evidences a reckless indifference to the employee's own safety. Collins v. General Casualty, supra; Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953). Mere negligence is not sufficient. The conduct of the employee must manifest a reckless disregard for the consequences coupled with a ......
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