Nosky v. Farmers Union Cooperative Association
| Decision Date | 30 December 1922 |
| Docket Number | 22966 |
| Citation | 191 N.W. 846,109 Neb. 489 |
| Parties | CARL J. NOSKY, APPELLEE, v. FARMERS UNION COOPERATIVE ASSOCIATION, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
W. F Moran, for appellant.
Andrew P. Moran, contra.
Heard before MORRISSEY, C. J., ROSE, DAY and FLANSBURG, JJ SHEPHERD, District Judge.
This is a proceeding under the workmen's compensation act. The plaintiff, Carl J. Nosky, filed a petition before the compensation commissioner against the defendant, for an award for injuries sustained on June 2, 1921, which arose, as he claimed, out of and in the course of his employment. The compensation commissioner found in favor of the plaintiff, and awarded him compensation at the rate of $ 15 a week from June 2, 1921, until disability ceased. An appeal was taken from this award to the district court, where upon trial the plaintiff obtained judgment entitling him to recover compensation at the rate of $ 15 a week from June 2, 1921, together with medical, hospital and nurse expenses in the sum of $ 186.66, and a penalty of $ 78.75 for failure to pay the award, and an attorney's fee of $ 75. From this judgment, the defendant has appealed.
The main error complained of by the defendant is the ruling of the court denying a jury trial. At the time the case was called for trial the defendant requested a jury to pass upon the questions of fact. This request was overruled. In this connection, it is first urged that the ruling of the court in denying a jury trial was in violation of section 6, art. I of our Constitution, which provides that "the right of trial by jury shall remain inviolate." Defendant has not aided us by the citation of any authority in support of his proposition, except to cite the constitutional provision. An examination of the authorities has convinced us that the great weight of authority sustains the rule that, where the employer and the employee have the right to elect whether they shall come under the provisions of the compensation act, and where the act provides for a trial without the intervention of a jury, an election to come within the provisions of the act is a waiver of the right to a jury trial. Hunter v. Colfax Consolidated Coal Co., 175 Iowa 245, 157 N.W. 145, 154 N.W. 1037; Hawkins v. Bleakley, 220 F. 378; Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648. That it is competent for parties litigant to waive a jury trial is well recognized, and in practice is a matter of almost daily occurrence. The provisions of part II of the workmen's compensation act, which contemplates a speedy trial without a jury, are not forced upon the employer nor the employee. They may avoid its provisions entirely by taking the steps prescribed therein. By affirmatively electing to come within its provisions, or by failing to take the steps to obviate its provisions, the employer and employee are under the provisions of part II of the act, and may be said thereby to have waived the right of a trial by jury.
Defendant also argues that section 3024, Comp. St. 1922, which is a part of the workmen's compensation act, specially provides that the question whether an injury was the result of the wilful negligence of the employee is a question of fact to be submitted to the jury, and, therefore, the court erred in denying a jury trial. An examination of the whole act, however, clearly discloses that this section applies only to the provisions of part I of the act, and has no application to part II. The provisions of part I apply to those cases only where the employer or the employee has taken the necessary steps to relieve himself of the provisions of part II. Section 3035, Comp. St. 1922, provides, in substance, that all contracts of employment made after the taking effect of the act shall be presumed to have been made with reference and subject to the provisions of part II, unless otherwise expressly stated in the contract, or unless a written or printed notice has been given by either party to the other that he does not accept the provisions of part II. The form and manner of giving the notice is also set forth in this section. There is no claim that either the plaintiff or the defendant took any steps to bring themselves within the provisions of part I of the act, and, hence, by the provisions of the act their respective rights must be determined by the provisions of part II thereof.
Section 3060, Comp. St. 1922, provides, in substance, for a hearing before the compensation commissioner; that if either party is dissatisfied with the award of the compensation commissioner the matter may be submitted to the...
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