Radil v. Morris & Company

• Decision Date: 04 January 1919
• Docket Number: 20847
• Citation: 170 N.W. 363,103 Neb. 84
• Parties: ADOLPH RADIL, APPELLANT, v. MORRIS & COMPANY, APPELLEE
• Court: Nebraska Supreme Court

170 N.W. 363

103 Neb. 84

ADOLPH RADIL, APPELLANT, v. MORRIS & COMPANY, APPELLEE

No. 20847

Supreme Court of Nebraska

January 4, 1919

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

Anson H. Bigelow, for appellant.

James C. Kinsler, contra.

DEAN J. LETTON and SEDGWICK, JJ., not sitting.

OPINION

DEAN J.

Plaintiff recovered an award from the compensation commissioner on account of an accidental injury sustained while in the employ of defendant at its packing house, and also $ 129 for expenses incurred for medical and surgical treatment by a physician other than the one regularly furnished by the employer. On appeal to the district court by defendant, the award for compensation was affirmed, but the medical service bill for $ 129 was disallowed. From that ruling plaintiff appealed to this court.

As a result of the accident a part of the second finger of plaintiff's left hand was bruised and fractured and afterwards amputated at the first joint by the physician whose bill is the subject of inquiry here. It is conceded that amputation was necessary, and it is agreed that the only question to be decided is this: Did the court err in disallowing the bill for medical and surgical treatment under section 3661, Rev. St. 1913, as amended by section 6, ch. 85, Laws 1917? For relief both parties rely on section 3661, as amended, which follows:

"During the first twenty-one days after disability begins the employer shall be liable for reasonable medical and hospital services and medicines as and when needed, not, however, to exceed two hundred dollars in value, unless the employee refuses to allow them to be furnished by the employer: Provided, however, in cases of dismemberment or injuries involving major surgical operations, the employer shall be liable for reasonable medical and hospital services and medicines as and when needed beyond as well as within the twenty-one day period, not however, to exceed two hundred dollars in value: Provided, further, that where the injured employee refuses or neglects to avail himself of such medical or surgical treatment, the employer shall not be liable for any aggravation of such injury due to said neglect or refusal."

Plaintiff argues that, because an operation became necessary, he was therefore at liberty to make his own selection of a physician, and that defendant under the act became liable for the reasonable expenses so incurred. His argument is based in part on the 1917 amendment that begins with the word "provided," where it first occurs in the section under consideration, and ends with the word "value." He contends that the amendment is a proviso, and hence operates to except the clause covered by it from the enacting clause or to qualify it in some way. We do not think the authorities sustain his argument. It does not always follow that an amendment operates as a proviso in a technical sense merely because it is preceded by the term "provided." Whether it is a proviso in effect or merely a conjunction must in part be determined from the context and from all the provisions of the act relating to the same subject-matter. With this in mind, it seems that the word "provided," as used in the act, has the same meaning that the conjunction "and" or "but" would have if used in its place. With this interpretation, section 3661, as amended, seems to be in harmony with the entire act of which it forms a part. Georgia Railroad & Banking Co. v. Smith, 128 U.S. 174, 32 L.Ed. 377, 9 S.Ct. 47; 3 Words and Phrases (2d series) 1321.

The employer having been made liable for the services...