Nebraska National Guard v. Morgan

• Decision Date: 07 July 1924
• Docket Number: 24050
• Citation: 199 N.W. 557,112 Neb. 432
• Parties: NEBRASKA NATIONAL GUARD, APPELLANT, v. FRED J. MORGAN, APPELLEE
• Court: Nebraska Supreme Court

199 N.W. 557

112 Neb. 432

NEBRASKA NATIONAL GUARD, APPELLANT, v. FRED J. MORGAN, APPELLEE

No. 24050

Supreme Court of Nebraska

July 7, 1924

APPEAL from the district court for Lancaster county: GEORGE F CORCORAN, JUDGE. Affirmed.

AFFIRMED.

O. S Spillman, Attorney General, and Lee Basye, for appellant.

Peterson & Devoe, contra.

Heard before LETTON, ROSE and DEAN, JJ., BLACKLEDGE and REDICK District Judges.

OPINION

REDICK, District Judge.

This is an action under the workmen's compensation law. The plaintiff, Fred J. Morgan, recovered an award before the compensation commissioner, which was confirmed on appeal to the district court for Lancaster county and a decree entered in favor of plaintiff. The defendant, Nebraska National Guard, has appealed to this court.

The facts out of which the controversy arises are substantially as follows: An encampment of the Nebraska National Guard was to be held in August, 1923, at grounds furnished for that purpose by the United States government near the city of Ashland, in Saunders county. It was necessary to prepare the grounds for such encampment, and, among other things, to erect shed kitchens for each company, properly screened for the purpose of excluding flies. It was deemed necessary by the adjutant general in charge of the encampment to employ a number of carpenters to erect such kitchens, and, among others, plaintiff was so employed on July 23, and worked continuously for six days until he met with the accident which is the basis of his claim for compensation. On Saturday afternoon, July 28, while plaintiff, as he says, was in search of nails for the purpose of going on with his work, he fell over some obstruction in such a way as to fracture the surgical neck of the femur in his left hip. The plaintiff was suffering at the time from rheumatism, and carried a cane, but the finding of the lower court that plaintiff's injuries are the result of an accident arising out of and in the course of his employment is sustained by the evidence and must be adopted. The accident and resulting injury being shown, the fact that plaintiff may have been suffering from disease at the time which may have contributed in some degree to cause the accident is not material. The labor commissioner and district court found that the plaintiff's injuries rendered the plaintiff totally and permanently disabled and allowed compensation at $ 15 a week for 300 weeks and $ 12 a week during the remainder of plaintiff's life. Plaintiff was earning $ 5.50 a day for 10 hours' work, and was paid by the state of Nebraska the sum of $ 33 for the six days he had been employed; and but for the accident plaintiff's employment would have continued with the other carpenters until the completion of the kitchens a few days later.

Three propositions are presented by the state as reasons for reversal of the judgment:

1. It is contended that Morgan was not an employee of the state of Nebraska. The statute defines such employee as: "Every person in the service of the state or any governmental agency created by it, under any appointment or contract of hire, express or implied, oral or written." Comp. St. 1922, sec. 3038, subd. 1. The argument here is that the Nebraska National Guard is a part of the army of the United States under 41 U.S. St. at Large, ch. 227, sec. 1, p. 759, providing: "That the army of the United States shall consist of the regular army, the National Guard while in service of the United States," etc. Note that the National Guard is a part of the army of the United States only while in its service; and is not a governmental agency of the state. Section 3300, Comp. St. 1922, provides, however: "The active militia shall consist of the organized and uniformed military forces of the state, which shall be known as the 'Nebraska National Guard.'" Section 3302 provides that the governor shall be the commander in chief. Section 3305 vests control in the adjutant general subordinate only to the governor. Section 3340 requires that the Nebraska National Guard shall encamp for instruction not less than five days annually at such time and place as may be ordered by the commander in chief. Section 3370 authorizes the adjutant general to employ such help as may be necessary and pay for the same out of state funds provided by the legislature, and the expense of constructing these kitchens was so paid.

We are clearly of the opinion that, in the preparation for and holding of the annual encampment, the Nebraska National Guard was a...