Peek v. Ayres Auto Supply

• Decision Date: 01 February 1952
• Docket Number: No. 33074,33074
• Citation: 155 Neb. 233,51 N.W.2d 387
• Parties: PEEK v. AYRES AUTO SUPPLY.
• Court: Nebraska Supreme Court

Page 387

51 N.W.2d 387

155 Neb. 233

PEEK v. AYRES AUTO SUPPLY.

No. 33074.

Supreme Court of Nebraska.

Feb. 1, 1952.

Syllabus by the Court.

1. A workmen's compensation case is a civil action equitable in character and so triable by this court on appeal.

2. All of the provisions of the Civil Code are applicable and controlling in such a case as they are in any other civil action equitable in nature.

3. The filing of a motion for new trial is not necessary in order to obtain review of such a case upon the merits in this court.

4. In order to review errors of law which allegedly occurred during the trial of such a case, a motion for new trial must be timely filed assigning such errors therein, and they must also be subsequently assigned and discussed in the brief filed in this court on appeal, or they will not ordinarily be considered.

5. However, a motion for new trial is not a necessary prerequisite in such a case in order for this court to search the record, try the case de novo thereon, and render such judgment as should have been rendered.

6. As provided in section 48-121, R.S.S.upp.1951, subdivision 2, the compensation for disability partial in character shall be sixty-six and two-thirds percent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, but compensation awarded thereunder shall not exceed the maximum provided therein.

7. Where the evidence discloses that further medical, hospital, and surgical services would not definitely improve the condition of an injured employee, and where such improvement would be conjectural, the employer's liability under section 48-120, R.S.1943, to furnish reasonable medical and hospital services and medicines, as and when needed, ceases.

8. A witness who testifies as an expert on a subject requiring special knowledge and skill is, in the absence of a special contract, entitled only to the statutory fee.

Armstrong & McKnight, Auburn, Paul P. Chaney, Falls City, for appellant.

Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

In this case plaintiff appealed from a judgment rendered by the district court in the trial de novo of a workmen's compensation case, as directed in a former opinion of this court, reported as Peek v. Ayres Auto Supply, 153 Neb. 239, 44 N.W.2d 321. The trial court found, and it is conceded that on May 1, 1946, plaintiff, a salesman for defendant sustained personal injuries arising out of an automobile accident which occurred in the course of his employment by defendant. Concededly, also, plaintiff was employed by defendant from September 10, 1945, to May 1, 1946, and was paid $1,155 salary plus $32.55 commissions, or a total of $1,187.55 during such period. It will be observed, therefore, that during such period of 33.17 weeks plaintiff earned $35.80 a week.

The trial court found and adjudged that plaintiff should recover $18 a week for 105 weeks from and after May 1, 1946, for temporary total disability; that thereafter he should recover $13.50 a week for 175 weeks for 75 percent temporary partial disability; and that thereafter plaintiff should recover $18 a week for 17 1/2 weeks 'for 50% loss of right ear.' (Italics supplied.) In that connection, there is no disagreement with reference to loss of plaintiff's ears, and the aforesaid italicized language concededly should be corrected to read: 'for 50% loss of his left ear and 20% loss of his right ear,' in order to conform with the evidence and applicable statute, section 48-121(3), R.S.Supp.1951. Concededly, also, defendant was properly given credit for $1,350 compensation already paid by defendant.

Further, it was ordered and adjudged that plaintiff should recover $350 traveling expenses to and from his home for medical treatment and that he should be reimbursed for certain medical and hospital expenses paid by plaintiff. Also, defendant was given credit for certain medical and hospital expenses already paid by it, and was required to pay certain others.

In this court plaintiff substantially assigned that: (1) The findings of fact are not conclusively supported by the evidence as disclosed by the record; (2) the trial court erred in failing to find that plaintiff was entitled to compensation for total and permanent disability; (3) erred in computing the compensation due plaintiff for 175 weeks for 75 percent temporary partial disability at $13.50 a week in that the findings of fact do not support such an award; and (4) erred in its findings and judgment for medical and travel expenses, and in its failure to find that plaintiff needed further medical services for which defendant should be liable. With regard to such assignments, we conclude that the first should be sustained, and in a trial de novo sustain the third and fourth, but do not sustain the second.

Defendant cross-appealed, assigning that the trial court erred in allowing any temporary partial disability. We conclude that the assignment should not be sustained.

At the outset of this appeal, defendant contended that since plaintiff filed no motion for new trial, this court was limited to an examination of the pleadings to determine whether or not the judgment was responsive thereto. Consequently, defendant argued that the judgment must be affirmed without a trial de novo, on the record. We conclude taht such contention has no merit.

A compensation case is a civil action, equitable in character, and so triable by this court on appeal. Lincoln Packing Co. v. Coe, 120 Neb. 299, 232 N.W. 92. We have concluded that such is ordinarily true whether the action was tried in the district court under section 48-181, R.S.1943, or section 48-182, R.S.1943. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212.

As stated in Meester v. Schultz, 151 Neb. 614, 38 N.W.2d 739, 741: 'All of the provisions of our Civil Code are applicable and controlling in a workmen's compensation case as they are in any other civil action equitable in nature. See Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366.' See, also, Schmidt v. City of Lincoln, 137 Neb. 546, 290 N.W. 250.

Further, this court has concluded that the filing of a motion for new trial is not necessary in order to obtain review of a workmen's compensation case upon the merits in this court. Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N.W. 352.

In the light of the foregoing, the applicable rule, as in equity cases, must be that in order to review errors of law which allegedly occurred during the trial of a workmen's compensation case, a motion for new trial must be timely filed, assigning such errors therein, and they must also be subsequently assigned and discussed in the brief filed in this court on appeal, or they will not ordinarily be considered. Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447; Hartman v. Hartmann, 150 Neb. 565, 35 N.W.2d 482. However, we are not presented here with any such alleged errors of law.

Rather, plaintiff's assignments depend for solution and decision entirely upon a review of the evidence appearing in the record and statutes applicable thereto. In such a situation a motion for new trial is not a necessary prerequisite in order for this court to search the record, try the case de novo thereon, and render such judgment as should have been rendered. Werner v. Nebraska Power Co., 149 Neb. 408, 31 N.W.2d 315; Beam v. Goodyear Tire & Rubber Co., 152 Neb. 663, 42 N.W.2d 293.

By stipulation, all evidence adduced at the first trial, which began on November 1, 1949, was received in evidence at a further hearing on December 19, 1950, after the judgment had been reversed and the cause had been remanded for trial de novo, whereat, by stipulation, additional evidence was adduced by both parties.

When the accident occurred, plaintiff was driving a Chevrolet two-door sedan furnished by defendant. At the crest of a hill he swerved right to avoid an on-coming car in his lane of travel. His car then went out of control, from one side of the highway to another, and turned over several times, throwing plaintiff's head out through the windshield and back again. Whether or not he was rendered unconscious for any period of time after the accident is conjectural. In any event, when plaintiff was able, he attempted to flag down several cars without success, until eventually two men who knew him stopped and took him to a hospital at Auburn. There two physicians were called, who administered surgical and medical treatment. After the accident, it was found that 50 percent of plaintiff's left ear and 20 percent of his right ear had been completely severed. He had a long deep cut from back of his right ear downward across his jaw, almost half way to the corner of his mouth. His head was swollen and aching. Both sides of his face were numb, some of his teeth were loosened, his jaw ached, and would not...