Nedela v. Mares Auto Company

• Decision Date: 14 October 1921
• Docket Number: 21522
• Citation: 184 N.W. 885,106 Neb. 883
• Parties: JOHN NEDELA, APPELLEE, v. MARES AUTO COMPANY, APPELLANT
• Court: Nebraska Supreme Court

184 N.W. 885

106 Neb. 883

JOHN NEDELA, APPELLEE, v. MARES AUTO COMPANY, APPELLANT

No. 21522

Supreme Court of Nebraska

October 14, 1921

APPEAL from the district court for Saline county: RALPH D. BROWN JUDGE. Reversed.

REVERSED.

Crofoot Fraser, Connolly & Stryker and B. V. Kohout, for appellant.

Bartos & Bartos, contra.

Heard before MORRISSEY, C.J., ROSE and FLANSBURG, JJ., BEGLEY and LESLIE, District Judges.

OPINION

LESLIE, District Judge.

Action for personal injuries alleged to have been sustained by the appellee, who will be referred to as the plaintiff, while employed by the appellant, who will be referred to as the defendant.

The plaintiff brought this action upon the theory that the accident was caused by negligence on the part of the manager of the garage, but the prayer is that his damages be assessed under the compensation act, should the facts call for an assessment of damages under that act, and, if not, then for judgment for $ 10,450 and costs.

The defendant by its answer denies that the accident was due to its negligence, and alleges that both parties were subject to the provisions of the employers' liability act; that neither had filed an election or declaration not to be bound thereby.

The jury found for the plaintiff in the sum of $ 4,500. Motion for a new trial was overruled, and from this the defendant has appealed.

It appears from the evidence that on the 16th day of December 1918, the manager of the defendant company solicited plaintiff to work for the defendant, and that on the following day he went to work in the defendant's garage. Nothing was said by either party as to what particular work the plaintiff was to do, over what period of time his employment would extend, nor what his wages would be. The only evidence bearing upon the subject is found in the record of the plaintiff's testimony, and is as follows: "Q. Now, did you have a talk with Charley Mares about going to work for him? Did you have a talk with him? A. Yes. Q. When was that talk? A. Sixteenth of December. Q. What year? A. 1918. * * * Q. Now, what did he say to you, and what did you say to him at that time and place? A. Why, he told me if I couldn't help him work. Q. What did you say? A. And I said yes. Q. At that time did he say what kind of work you was to do? A. No. Q. At that time did he say for how long you was to work for him? A. Nothing was said. Q. At that time was there anything said about what wages you were to get? A. No. Q. Is that all that was said at that time and place? A. Yes."

From the 17th to the 21st of December, five days, the plaintiff was engaged in assembling and putting together new cars, and whatever else he was directed to do in and about the garage. The evening of the 21st, and just before he left the garage, he was requested by the manager to hold a wheel while the manager took a hammer and chisel and attempted to do something to the wheel; just what is not disclosed. It seems, however, that he struck the chisel with the hammer while it was against some part of the wheel, and immediately a chip of steel struck the plaintiff in his right eye. As a result of this the plaintiff lost the sight of his eye, and later had the eye removed.

Two questions are raised by the appeal of the defendant: First, were the parties subject to the provisions of the employers' liability act? Second, does the evidence disclose any actionable negligence on the part of the defendant?

Section 3653, Rev. St. 1913, provides: "In the occupations described in section 97 of this chapter, and all contracts of employment made after the taking effect of this article, shall be presumed to have been made with reference and subject to the provisions of Part II hereof unless otherwise expressly stated in the contract, or unless written or printed notice has been given by either party to the other, as hereinafter provided, that he does not accept the provisions of Part II. Every such employer and every employee is presumed to accept and come under Part II hereof, unless prior to accident he shall signify his election not to accept or be bound by the provisions of Part II."

Section 3652 provides: "Such agreement or the election hereinafter provided for shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in Part II of this article."

Subdivision 3, sec. 3656, is as follows: "It shall not be construed to include any person whose employment is casual, or not for the purpose of gain or profit by the employer, or which is not in the usual course of...