Navracel v. Cudahy Packing Company

• Decision Date: 30 December 1922
• Docket Number: 22198
• Parties: STANLEY NAVRACEL, APPELLANT, v. CUDAHY PACKING COMPANY, APPELLEE
• Court: Nebraska Supreme Court

191 N.W. 659

109 Neb. 506

STANLEY NAVRACEL, APPELLANT, v. CUDAHY PACKING COMPANY, APPELLEE

No. 22198

Supreme Court of Nebraska

December 30, 1922

APPEAL from the district court for Douglas county: CARROLL O STAUFFER, JUDGE. Affirmed.

AFFIRMED.

Frank L. McCoy and Weaver & Giller, for appellant.

Sears Horan & Sears, contra.

Heard before MORRISSEY, C. J., ROSE, FLANSBURG, JJ., LETTON, DEAN REDICK and SHEPHERD, DAY and GOOD, JJ., BUTTON, District Judges.

OPINION

FLANSBURG, J.

This was an action by the plaintiff, an employee of the defendant Cudahy Packing Company, to recover damages for personal injuries sustained as the result of the alleged negligence of the defendant company in failing to guard certain machinery housed in its plant. It is not questioned but that the accident arose out of and in the course of the plaintiff's employment. The defense was that the plaintiff, as an employee who had not formally rejected the compensation law, came within its provisions, and that its remedies were exclusive as against any suit for damages against the employer, based on negligence for failure to comply with the factory act. The trial court entered judgment in favor of the defendant, and the plaintiff brings this appeal.

By the provisions of the factory act (Comp. St. 1922, secs. 7690, 7699), every person operating a plant where machinery is used is required to provide guards or screens to protect employees from injury from shafting, gearing, etc., and any such person violating the provisions of the act is made "liable in damages to any person injured, as a result thereof." The factory act was originally enacted in 1911 (Laws 1911, ch. 67) and has been carried upon the statute books since, having been finally revised and amended in 1919. The workmen's compensation law was originally enacted in 1913. Laws 1913, ch. 198.

It is the plaintiff's contention that the factory act gives a specific right to damages, not affected by the compensation law; that the two acts are not inconsistent, but, if found to be inconsistent, the factory act, by the amendments and reenactment in 1919, was intended by the legislature, to the extent of the provisions embodied in the act, to work an implied repeal of provisions in the compensation law inconsistent therewith.

The two laws are not inconsistent, though they could not, obviously, be applied at the same time to a given case. Either the factory act or the compensation law must govern. The compensation law is not a compulsory law but is elective. It was enacted at a time when questions were being raised against compulsory compensation laws, that to require the employer to pay compensation for accidents happening to his employees where he was not at fault was taking his property without due process of law. Some of the courts sustained these objections to compulsory compensation acts and held, on that ground, that they were unconstitutional. Ives v. South Buffalo R. Co., 201 N.Y. 271, 34 L.R.A. n. s. 162, 94 N.E. 431. The elective law was based upon another theory. It erected a statutory contract between all employers and employees, falling within its terms, who should not affirmatively, in a specified manner, reject the provisions of the act. By a failure to act the parties were presumed to have elected to come within the act and to have contracted with reference to it. The obligations, then, of the employer towards the employee, under the compensation law, are in a sense contractual.

That the compensation law was intended to govern exclusively the matter of compensation for injuries received by employees in the employment covered by the act is shown by its express terms. It provides that by the election of the parties to come under the act they shall be held to have surrendered their rights "to any other method, form or amount of compensation or determination thereof than" that which is provided by the workmen's compensation schedule of awards. Comp. St. 1922, sec. 3034.

A case involving a very similar question to the one presented here is Hilsinger v. Zimmerman Steel Co., 193 Iowa 708, 187 N.W. 493. That was a case where a general statute gave to a present the express right to recover damages for injury to his minor son growing out of the negligence of such son's employer. The question was whether or not the compensation act affected the parent's rights under the general law. The court said: "The argument for the appellant is that the workmen's compensation act did not in terms repeal section 3471, and that its terms are not so repugnant to section 3471 that a repeal by implication should be found. To our minds, the question involved is not so much whether section 3471 has been repealed by implication, but whether the field of its application has been circumscribed or reduced by the operation of the compensation act. Assuming that the purpose of the compensation act was to cover the entire field of liability for industrial injury, section 3471 could still be operative outside of that field." The court in that case held that the minor employee, 18 years of age, came under the provisions of the compensation act, since he had not expressly rejected it, and that the remedies provided by that act were exclusive of any remedy to the parent under the general statute for damages.

So it can be said here: The factory act is still operative, unaffected by the compensation law, as to all employees who do not come within the provisions of the compensation law, either where the parties reject the compensation act, or where the employment or the accident was one which was not covered by the compensation act. Compensation statutes of this character have generally been held to be exclusive of all other remedies, by reason of a surrender of those remedies by the parties coming under the act. Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146, 139 P. 1193; Menter Co. v. Brock, 147 Minn. 407, 180 N.W. 553; C. J., Workmen's Compensation Acts, sec. 156.

Plaintiff argues that the failure to guard machinery, in violation of the factory act, is wilful negligence on the part of the employer, and claims, where injury results from such conduct, that the occurrence does not constitute an accident, within the meaning of the compensation law. In the case of McCarthy v. Village of Ravenna, 99 Neb. 674, 157 N.W. 629, such a violation was held to constitute gross negligence.

The plaintiff lays particular stress upon the decision in Adams v. Iten Biscuit Co., 63 Okla. 52, 162 P. 938, where the court, in passing upon the general constitutionality of a workmen's compensation law, declared. "A wilful or intentional injury, whether inflicted by the employer or employee, could not be considered accidental and therefore is not covered by the act." The facts in that case, however, did not show anything but ordinary negligence on the part of the employer, so that the statement of the court was only general, not being applied to any particular state of facts. There is a distinction between an employer causing a wilful or intentional injury, and being guilty of wilful or gross negligence, which negligence results in an injury, and we take it that the court, in making the general statement, had in mind that distinction. An employer could not, of course, be protected by the provisions of the compensation act where he intentionally inflicts an injury upon an employee. Such an injury could hardly be said to be one which would be incidental to the employment, or one which would arise from the operation of the employer's business.

Some of the compensation laws have a provision...