Lincoln Gas & Elec. Light Co. v. Watkins

• Decision Date: 12 June 1925
• Docket Number: No. 24628.,24628.
• Court: Nebraska Supreme Court
• Parties: LINCOLN GAS & ELECTRIC LIGHT CO. ET AL. v. WATKINS.

113 Neb. 619

204 N.W. 391

LINCOLN GAS & ELECTRIC LIGHT CO. ET AL.

v.WATKINS.

No. 24628.

Supreme Court of Nebraska.

June 12, 1925.

Syllabus by the Court.

In the interpretation of a legislative act, it will be presumed that the lawmakers intended that, in the enactment of a statute, every word used therein shall be given its ordinary and usually accepted meaning.

As applied to occupations, the word “seasonal,” as used in section 3049, Comp. St. 1922, refers to occupations which are governed by and are ordinarily performed only in certain seasons of the year.

The Employers' Liability Law provides that compensation shall be based on the wages received by the injured or deceased employee as the case may be, “at the time of the accident causing the injury.” Comp. St. 1922, § 3045.

Where the evidence discloses that a claimant, under section 3045, Comp. St. 1922, is wholly dependent for her support upon her son, “at the time of the accident” which caused his death, such claimant is entitled, under section 3045, Comp. St. 1922, to 66 2/3 per centum of the wages received by the employee at the time of the injury, for a period of 350 weeks; but the compensation shall not be more than $15 a week.

The Employers' Liability Law accepts as an inevitable condition of industry the happening of accident, and charges its costs to the industry.

Where reasonable grounds for controversy do not exist in respect to the time when and the manner in which a deceased employee met his death, the defendant's liability under the Employers' Liability Law accrues, in the manner and at the time provided in section 3048, Comp. St. 1922, and if the statutory payments are thereafter withheld by the employer, he is subject to the penalty for waiting time which is provided in the above-cited section.

Under the evidence and the law, counsel for claimant are entitled to an additional attorney fee of $100 for services in this court, pursuant to section 3048, Comp. St. 1922.

Appeal from District Court, Lancaster County; Wheeler, Judge.

Proceeding under the Employers' Liability Law by Winnie Watkins for the death of Kenneth Watkins, her son, claimant, opposed by Lincoln Gas & Electric Light Company, employer, and the United States Fidelity & Guaranty Company, insurer. From a judgment of the district court on appeal by all parties from a finding of the compensation commissioner fixing an award, the claimant, the employer, and the insurer appeal. Reversed and remanded, with directions.Holmes & Chambers, of Lincoln, for appellants.

Reavis & Beghtol, of Lincoln, for appellee.

Heard before ROSE, DEAN, GOOD, DAY, THOMPSON, and EVANS, JJ., and SHEPHERD, District Judge.

DEAN, J.

Kenneth Watkins, aged 20, while in the employ of the Lincoln Gas & Electric Light Company, came in contact with an electric current, August 1, 1924, while he was working on an electric light pole, and thereby met an immediate death. The United States Fidelity & Guaranty Company is the insurer of the above-named company's risk, and both have been joined as defendants and they will be hereinafter designated as such. Mrs. Winnie Watkins is Kenneth's mother. She filed a petition with the compensation commissioner wherein she prayed for compensation and, upon a hearing being had, the commissioner found that she came within the partial dependency class, under section 3045, Comp. St. 1922, and fixed her award at $8 a week for 350 weeks and awarded $150 for funeral expenses. Both parties appealed to the district court and the award of the commissioner was there affirmed and, in addition to the commissioner's finding, the district court allowed $100 as an attorney fee, and judgment was accordingly rendered in favor of claimant. Neither party was satisfied with the judgment and both have appealed.

Mrs. Watkins contends that she comes within the class designated in section 3045, Comp. St. 1922, as “wholly dependent” and that she is therefore entitled, under the act, to $15 a week, as compensation, for a period of 350 weeks and funeral expenses, and an attorney fee and the statutory penalty for waiting time under section 3048, Comp. St. 1922.

Defendants concede that Mrs. Watkins' son was killed by reason of an accident, arising out of and in the scope of his employment, and that his mother is entitled “to an award of some amount, the sole issue being the amount * * * per week” to which she is entitled. The contention is that she is but partially dependent and that, at the most, she is entitled to $2.88 a week, and no more, for the statutory 350 week period. Defendants admit, however, that Mrs. Watkins is entitled to $150 for funeral expenses. But they contend that an attorney fee should not have been allowed and they protest that, under the facts, plaintiff is not entitled to the statutory “waiting time.”

The material facts are substantially these: It seems that Mrs. Watkins and her son Kenneth came to Lincoln from Auburn, their former home, in September, 1923, and that her family consisted of Kenneth and herself. Lowell Watkins, her husband, is a carpenter and the last she knew of his whereabouts he was at Dubuque, Iowa. They had not lived together for more than ten years immediately preceding the trial. There is another son named Gordon, aged 24 and now married, and, from Mrs. Watkins' evidence, it appears that he had not lived with her and Kenneth since they came to Lincoln. Some time before the trial Mrs. Watkins obtained a divorce. She testified that, during all the years of their separation, she received no support from her husband, and that he, without cause, during upwards of the past ten years of their married life, refused to live with her or to support her; that he never wrote to her; that at times he sent comparatively small sums of money to Kenneth, and that “it was understood that he was to contribute something until the boys were through school and then he was through;” that for about a year he gave Kenneth about $25 a month, but at no time did he contribute anything for her support; that Kenneth was an active young man, “unusually strong and healthy,” and so continued “clear up to the day of his death.”

She testified that Kenneth was her sole support, and that before he died he furnished her with room and board and such clothing as she “had to have,” and occasionally a little currency; that it was always understood by the family that Kenneth would support her; that, when asked what was said by Kenneth on the subject of her support, she answered: “Well, he had always said that he was going to take care of Mamma, that wherever he was she was to be; I can't tell you how many times he said it, and if anything was said about what I was to do that was all that could be said because he always insisted on that;” that the eldest son was not physically strong, and was “never so that he could get any life insurance” and never contributed anything to her support; that she did some plain sewing and ironing and ordinary housework, but this was more than a year before Kenneth's death; that she never attended to the payment of bills, but this was always left to Kenneth; that they lived at Auburn four years before they moved to Lincoln, and that, during this four-year period, she and Kenneth both worked; that for about fifteen months, namely, from the spring of 1922 until the fall of 1923, which was just before they moved to Lincoln, Kenneth, for about three months of this period, was employed by an electrical company building lines out of Nebraska City, and for the remainder of the time he worked for an electrical concern at Auburn, but she did not name the wages which he then earned,...