Miller v. George & Mary Reisch Co.
| Decision Date | 12 March 1937 |
| Docket Number | 29948. |
| Citation | 271 N.W. 853,132 Neb. 338 |
| Parties | MILLER v. GEORGE AND MARY REISCH CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When an employee is assaulted by his foreman and injured while eating dinner furnished as a part of his wages, compensation may be allowed.
2. Eating such dinner was a service growing out of, and incidental to, his employment.
3. " Where an employee received an accidental injury while upon the master's premises and subject to the master's directions, though at the time not actually engaged in doing any work for the master, the accident occurred in the course of the employment." Boyce v Burleigh, 112 Neb. 509, 199 N.W. 785.
Appeal from District Court, Hamilton County; Landis Judge.
Proceeding under the Workmen's Compensation Act by Robert Miller claimant, opposed by the George and Mary Reisch Company, Richland, Nebraska, employer. From a judgment affirming an award of the Workmen's Compensation Court allowing compensation, the employer appeals.
Affirmed.
Chambers & Holland, of Lincoln, for appellant.
Craft, Edgerton & Frazier, of Aurora, for appellee.
Heard before GOSS, C. J., ROSE, DAY, PAINE, and CARTER, JJ., and MESSMORE, District Judge.
This is an appeal from an affirmance of the district court of an award allowing compensation, after a hearing by one member of the compensation court, for eight weeks at the rate of $6 a week, and an allowance of $65 for medical expense, and $68 for hospital expense.
The two assignments of error are that the judgment is contrary to the law and contrary to the evidence. The defendant filed a certificate of waiver and election to appeal directly to the district court from such award of one of the judges of the Nebraska's workmen's compensation court, as provided in section 48-174, Comp. St.Supp.1935.
The plaintiff, Robert Miller, was employed by the George and Mary Reisch Company, the defendant corporation, in August to work on its ranch near Richland, Colfax county, at $20 a month, together with his board and room. Plaintiff was required to live on the ranch and to eat and room at the house of the ranch foreman, who was paid $15 a month for the board and room of each man. The foreman heard that some of the men, including the plaintiff, were dissatisfied with the meals, and on October 29, 1934, upbraided the plaintiff during the noon meal. The plaintiff replied, " Yes, I have been kicking, but I am not alone," and thereupon the foreman in great anger jumped up from the table and started for the plaintiff, saying, " You son-of-a-bitch, I'll make you smoke for it." The plaintiff, in trying to get away, stumbled and fell, and the foreman jumped on him, his knee coming down on the hip-bone and sliding into the abdomen. The plaintiff said he put his hands over his head and let the foreman hit him. One of the other employees took the foreman off, and plaintiff immediately went to town to notify Mr. Reisch of this assault at his residence, where he was eating his noonday meal.
In response to the question, " What did you say to him?" he replied: " I told Mr. Reisch the occurrence that had happened at the table, and that I had been hurt, and he said he wasn't liable for his foreman's doings, but that he would think the matter over, and told me to go back out and go to work, and he would come out and talk it over with the boys."
Mr. Reisch on direct examination testified that plaintiff told him that " he didn't get any scratch at all," but on cross-examination admitted that the plaintiff had told him at that time about the same story he had told on the witness-stand.
Anton Hartman testified that he separated them, and that the foreman, Kerr, hit the plaintiff with his fist, but did not remember that he pummeled him with his knees on his body; that three or four days afterward he noticed plaintiff was limping, and claimed he got hurt in the fight. Hartman also testified that Mr. Reisch came out to the ranch the same afternoon and investigated the trouble.
The record also shows that plaintiff talked with Adolph Saalfeld, a storekeeper at Richland, about the assault, and Saalfeld said: " Why he come over to our place and he wanted board at our place; he said him and Mr. Kerr had a fight, and he wanted to know if he couldn't board over there." He further testified that plaintiff did not mention any injury he had sustained in the assault.
The record further shows that, prior to this assault, the plaintiff had run a nail into his foot and had received medical attention from the insurance company. After the assault he had filed another claim for compensation for injuries received on the ranch, which was also paid by the insurance company.
The plaintiff had, prior to that time, a very small hernia, and as a result of this assault, the hernia immediately increased in size, pained him constantly, and he could not do any heavy work without pain, but he did not seek medical attention until two or three weeks after the assault, but the doctor did not make an examination of the hernia at that time. The plaintiff later consulted a surgeon at Aurora, who on May 2, 1935, reduced the rupture by an operation, and he was unable to work for two months after the operation.
The assault which it was charged caused the hernia occurred October 29, 1934, and the petition was filed with the compensation court at Lincoln within one year thereafter, as required by section 48-138, Comp.St.1929, and the hearing was held thereon before Judge Jackman, of the compensation court, on November 7, 1935.
The defendant insists that an assault by a fellow workman does not arise out of the employment, and cites Urak v. Morris & Co., 107 Neb. 411, 186 N.W. 345, and Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509, L. R.A.1916D, 970, but this last case is overruled in Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N.W. 706, 13 A.L.R. 513.
In Stanolind Pipe Line Co. v. Davis, 173 Okl. 190, 47 P.2d 163, an employee was assaulted by discharged employees who were drunk, and it was there held that the injury did not arise out of the employment.
Also, in Indian Territory Illuminating Oil Co. v. Lewis, 165 Okl. 26, 24 P.2d 647, where an employee was shot and robbed by a desperado while working on his books at the office in the evening, compensation was denied, as there was no causal connection between the conditions under which the work was to be performed and the resulting injury.
Each of these cases can be clearly distinguished from the case at bar.
In Willis v. State Industrial Commission, 78 Okl. 216, 190 P. 92, an employee was warming himself by a fire on the premises of his employer and was injured by the explosion of a dynamite cap thrown in the fire by a fellow employee, and it was held that he could recover. It is set out in that opinion that the correct rule is that, where a workman is injured in horseplay in which he is an active participant, he is not entitled to recover, but if while he is going about his duties he is a victim of another's prank, to which he is not in the least a party, he should not be denied compensation.
An erecting engineer, working in the refrigerator room of a hospital, where he had been sent by his employer, was given some ice cream by the janitor, from which he contracted smallpox and died. The employer defended on the ground that eating ice cream was outside the scope of his employment. The Wisconsin court allowed compensation and held that eating ice cream was simply a refreshment, the same as taking a drink of water, and was not forbidden by the employer, and was within the scope of his employment. Vilter Mfg. Co. v. Jahncke, 192 Wis. 362, 212 N.W. 641, 57 A.L.R. 627.
An employee, going to get a drink of water, was injured in alighting from a truck. The court held that he was at the moment of injury engaged in performing services growing out of, and incidental to his employment. Compensation will not be denied because...
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