McGuire v. Phelan-Shirley Company

• Decision Date: 13 February 1924
• Docket Number: 23546
• Citation: 197 N.W. 615,111 Neb. 609
• Parties: GEORGE F. MCGUIRE, APPELLEE, v. PHELAN-SHIRLEY COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

197 N.W. 615

111 Neb. 609

GEORGE F. MCGUIRE, APPELLEE, v. PHELAN-SHIRLEY COMPANY ET AL., APPELLANTS

No. 23546

Supreme Court of Nebraska

February 13, 1924

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed.

AFFIRMED.

Kennedy Holland, DeLacy, & McLaughlin and Edward J. Svoboda, for appellants.

J. J Friedman, contra.

Heard before MORRISSEY, C. J., ROSE, GOOD, DEAN and DAY, JJ., REDICK, District Judge.

OPINION

DEAN, J.

In this suit plaintiff seeks to recover compensation from defendants under the employers' liability act for injuries sustained at Silver City, Iowa, where, as an employee, he assisted in operating a ditching machine of the Phelan-Shirley Company, a general construction company, hereinafter called the company. The General Accident, Fire & Life Assurance Corporation, hereinafter called the insurance company, carried the company's accident insurance and is a codefendant. When the case was heard in the district court, on appeal from the award of the compensation commissioner, which was in plaintiff's favor, the award was affirmed except as to the payment of a penalty for waiting time which was disallowed by the district court. The judgment involved here comprises the following items, namely, $ 15 a week for 300 weeks less $ 70 compensation which was formerly paid by defendant, $ 12 a week for the remainder of plaintiff's life, and $ 200 for hospital bills less $ 132 which the company paid before the action was begun. An attorney's fee of $ 250 was also allowed by the court. From the judgment in plaintiff's favor and from the allowance of an attorney's fee defendants appeal. Plaintiff prosecutes a cross-appeal from the court's disallowance of the payment of a penalty for waiting time.

Defendant's argue that, because the contract of employment was to be performed in Iowa and the accident happened there, it follows that plaintiff's suit should have been brought in Iowa, and that it cannot be maintained in Nebraska even though plaintiff is a resident of Nebraska and the company has its principal place of business in Nebraska and the contract of employment was made in Nebraska.

The workmen's compensation act provides, inter alia, that it "shall apply * * * to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer." Comp. St. 1922, sec. 3029. The legislature did not provide that the act should have the effect contended for by the company, under the facts before us, and we have no desire to import to it a meaning which is not supported by its language. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372; State v. District Court, 139 Minn. 205, 166 N.W. 185; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 172 N.W. 191; North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 162 P. 93. There are jurisdictions which hold to the contrary, but the reasoning does not appeal to us and we prefer the rule here announced. The workmen's compensation act is one of general interest, not only to the workman and his employer, but as well to the state, and it should be so construed that technical refinements of interpretation will not be permitted to defeat it. Parson v. Murphy, 101 Neb. 542, 163 N.W. 847, L. R. A. 1918 F, 479. We think the proceeding is maintainable in this state.

In respect of plaintiff's employment, it appears that on December 15, 1919, he entered into a written contract with the company, at its office in Omaha, and by its terms he agreed to superintend the dismantling of a "drag line machine" at Silver City, Iowa, and also to superintend its removal to Indianola, Iowa, to be there used in excavating a ditch in Warren county. The contract provided further that all excavating was to be superintended by plaintiff, and that when the ditch was completed plaintiff should superintend the moving of the machine "to the nearest shipping point, or elsewhere, as directed" by the company. Besides his salary of $ 150 a month for labor and superintendence, while engaged in moving, plaintiff was to receive a stipulated sum for each cubic yard of earth removed, and a bonus of $ 300 if the ditch was completed and accepted on or before December 1, 1920, by the proper officers of the county.

When the machine was dismantled and loaded on the cars at Silver City, plaintiff, with other members of the company's crew, was engaged in removing the debris from about the boarding camp preparatory to moving away. Shortly before this, perhaps the same day, the roof of the camp building was removed and was left leaning against a tree. While plaintiff, in the course of his employment, was picking up tar paper and rubbish in the vicinity of the leaning roof, it fell on him, injuring his head and crushing his body to the ground.

The company contends, that, even though the action is maintainable in this state, liability does not attach, under the facts and the law, and that the suit should be dismissed. The argument, inter alia, is that plaintiff did not give "notice of the injury * * * as soon as practicable after the happening thereof." Nor was the claim for compensation made within six months after the injury, all as required by section 3056, Comp. St. 1922.

The position seems to be untenable. The statute does not require in every instance that the employee shall give notice of his injury or present his claim for compensation within six months from the date of the accident. The accident and disability may not be simultaneous. Accidents frequently occur where the true nature of the injury and the resulting disability are not discernible for a considerable time even with the aid of scientific skill. When latent injuries from accidents do not at first indicate disabilities which are compensable, an employee...