Nelms v. Mahoney
| Decision Date | 11 October 1946 |
| Docket Number | 32132. |
| Citation | 24 N.W.2d 558,147 Neb. 626 |
| Parties | NELMS v. MAHONEY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Accidental injuries to be compensable under the Workmen's Compensation Act must arise out of and in the course of employment.
2. By legislative declaration in the Workmen's Compensation Act personal injuries arising out of and in the course of employment include only such injuries as are sustained while the workman is engaged in, on, or about the premises where duties are being performed or where service requires his presence at the time of the injury, and during the hours of service of such workman.
3. Injuries sustained while in the performance of duties incidental to the duties contemplated by the contract of employment come within the purview of the Workmen's Compensation Act if they arise out of and in the course of employment within the meaning of the Act.
Lester L. Dunn and John V. Head, both of Lincoln, for appellant.
Davis Stubbs & Healey, of Lincoln, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action by Leonard B. Nelms, plaintiff and appellant, against J. Phillip Mahoney, doing business as Victory Cleaners defendant and appellee. The action is for recovery of benefits on account of injuries sustained by plaintiff growing out of an accident which plaintiff contends occurred at a time and under such circumstances as to require the defendant to respond under the provisions of the Workmen's Compensation Act, R.S.1943, § 48-101 et seq.
A hearing was had before a single judge of the workmen's compensation court with a resultant award in favor of the plaintiff. A rehearing was had before the full court and likewise following this hearing an award was there made in favor of plaintiff. From the award of the workmen's compensation court an appeal was taken to the district court where after trial the award was reversed and the cause of action dismissed. From the disposition of the case made by the district court plaintiff has appealed to this court.
As grounds for reversal plaintiff has set out in his brief six separate assignments of error. The substance of them taken together amount to an assertion or contention that the award of the workmen's compensation court was sustained by sufficient evidence and that the district court erred on that account in reversing the award and dismissing the action.
That there was an accident, that at the time of the accident plaintiff was riding in a vehicle owned by defendant which was at the time being operated by an employee of the defendant, and that in consequence plaintiff was seriously injured, there is no question or dispute. There are only two questions for determination here. They are: Was the plaintiff at the time in the employ of the defendant within the meaning of the Compensation Act? If so, then was there sufficient proof of the character, quality, and extent of his injuries to sustain the award of the workmen's compensation court?
The substantial facts are that the defendant was engaged in the cleaning business with his place of business in the city of Lincoln, Nebraska. The plaintiff was a sergeant in the military service of the United States Government and was assigned to and stationed at the Military Air Base which was located a few miles northwest of the city of Lincoln.
On or about January 2, 1945, with the consent of his commanding officer, plaintiff was engaged to work for defendant at defendant's cleaning establishment at times when he was not engaged in the performance of military duties. He had no regular hours of duty at the cleaning establishment and was paid at the rate of 75 cents per hour for the service actually performed. At times he worked for defendant in the morning, then went to the Air Base for his tour of duty and then returned for further work for defendant. During the period involved defendant had a contract for a part of the cleaning originating at the Air Base. For the purpose of taking care of the business coming from the Air Base defendant sent a truck out there regularly. The customary time for the return of the truck was 5:30 p. m.
At the time plaintiff was employed by defendant it was explained that plaintiff had an automobile of his own but that he was short of gas rationing coupons and on that account he would not always be able to drive back and forth. It was also explained that regular transportation facilities between the Base and the city were congested and if plaintiff relied on these much delay would be entailed in arriving for work. In the light of this it was agreed that when plaintiff desired he could ride to and from the Base in defendant's pick-up truck.
On January 13, 1945, which was the date of the accident, plaintiff availed himself of the opportunity to ride in on the truck. Plaintiff boarded the truck at about 5:45 p. m. and the driver, an employee of defendant, started to drive out. At a street intersection within the Air Base the truck was driven into the side of a bus. In consequence of this plaintiff was injured. The injuries sustained consisted of lacerations on the neck, the eyebrow area, and scalp; contusions and abrasions of the face, neck, right forearm, left hand, right buttocks, and right foot; fractures of the left...
To continue reading
Request your trial