Ray v. School District of Lincoln

• Decision Date: 23 December 1920
• Docket Number: 21562
• Citation: 181 N.W. 140,105 Neb. 456
• Parties: JOHN P. RAY, APPELLEE, v. SCHOOL DISTRICT OF LINCOLN, APPELLANT
• Court: Nebraska Supreme Court

181 N.W. 140

105 Neb. 456

JOHN P. RAY, APPELLEE, v. SCHOOL DISTRICT OF LINCOLN, APPELLANT

No. 21562

Supreme Court of Nebraska

December 23, 1920

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed and dismissed.

REVERSED AND DISMISSED.

R. O Williams, for appellant.

Holmes Chambers & Mann, contra.

OPINION

FLANSBURG, J.

Action, based upon the workmen's compensation law, in which the plaintiff, an employee of the school district of the City of Lincoln, a municipal corporation, seeks to recover compensation for injuries sustained by him in the course of and growing out of that employment.

The question for decision is whether or not employees of the school district come within the compensation law. It is contended by the defendant that no employees of the state, or of any subdivision thereof, are within the law, except in those instances where they are employed in some enterprise carried on for pecuniary gain or profit.

The sections of the statute, particularly involved, are as follows:

Section 3647: "The provisions of this act shall apply to the state of Nebraska and every governmental agency created by it, and to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer." Rev. St. 1913, as amended by Laws 1917, ch. 85.

Section 3655: "The following shall constitute 'employers' subject to the provisions of this article:

"(1.) The state and every governmental agency created by it.

"(2) Every person, firm or corporation * * * who is engaged in any trade, occupation, business or profession."

Section 3656: "The terms 'employee' and 'workman' are used interchangeably and have the same meaning throughout this article, the said terms include the plural and all ages and both sexes, and shall be construed to mean:

"(1) Every person in the service of the state or of any governmental agency created by it, under any appointment or contract of hire, express or implied, oral or written, but shall not include any official of the state or any governmental agency created by it, who shall have been elected or appointed for a regular term of office, or to complete the unexpired portion of any regular term.

"(2) Every person in the service of an employer who is engaged in any trade, occupation, business or profession.

"(3) 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 the trade, business, profession or occupation of his employer." Rev. St. 1913, as amended by Laws 1917, ch. 85.

It is urged that the term "gain or profit" should not be construed in the ordinary sense of pecuniary gain or profit, but that the phrase should be held to designate any employment which should be found to be carried on for the benefit or advantage of the employer. We do not believe the statute capable of that construction. The original conception of workmen's compensation laws seems to have been based upon the principle that the servant should no longer be required to bear loss in consequence of personal injuries, sustained in and growing out of the service rendered his employer, since the benefit of that service, based in part upon the personal hazard and risk of loss to the servant, was received by the employer. It was not, however, intended that such loss should simply be shifted from the employee and saddled upon the employer, and he made to carry the burden alone, but that such loss through injuries, sustained by the employee, should be treated as a part of the cost of service to the employer, and he, in fixing the price of his product, could reimburse himself by passing it on to the consumer, who received the ultimate benefit. An employer, through the instrumentality of the enterprise carried on by him was declared to be the cause of all accidents directly growing out of such enterprise, and such laws prevented him from gaining pecuniary advantage through such instrumentality, and required him to pay those losses as a part of the expense cost of his undertaking. It seems to have been for these reasons that workmen's compensation laws, originally applied to industrial accidents only, have been, in some instances, limited in their operation to those enterprises which are carried on for pecuniary gain.

Though it is true, as argued, that, in the case of employment by the state, the cost of service, including the payment of compensation for injuries, is equitably passed on to society through the process of taxation, still, it seems clear to us, that fact does not affect nor alter the meaning to be given to the terms now under consideration. Were we to interpret the words "gain or profit" to mean benefit or advantage, pecuniary or otherwise, that an employer might receive through an employment carried on by him, such meaning must apply not only to state employments but also to all other employments covered by the statute. That interpretation would only lead to uncertainty and confusion, which, under the plain wording of the statute, does not now exist.

That the phrase was intended to mean pecuniary gain or profit finds some support in the following cases: Allen v. State, 160 N.Y.S. 85; Redfern v. Eby, 102 Kan. 484, 170 P. 800; Gray v. Board of Commissioners of Sedgwick County, 101 Kan. 195, 165 P. 867; Sexton v. Public Service Commission, 167 N.Y.S. 493.

In this light and by reason of the common and ordinary meaning of the words used, we believe the statute, on that question, is not open to construction.

By a literal reading of the provisions of the statute in connection with subdivision "(3)," last above quoted, the term "employee" covers only such employees, whether in the service of private enterprises or in that of the state, or of its subdivisions, as are employed for "gain or profit."

It is quite apparent that the "casual" employee in the service of the state, covered by subdivision "(3)" of the statute, just as in the case of other employment, was intended to be excluded from the act; also that any employee, who was not engaged in the regular business and activities carried on by the state and its subdivisions, was to be excluded. The term "employer" is expressly defined to include "the state and every governmental agency created by it," and, by reading that definition into the clause in question, the express language, as employed and interpreted by the legislature, would exclude from the operation of the law every employee of the state and of its subdivisions who is not employed "for the purpose of gain or profit by the state, or by any governmental agency created by it."

The plaintiff contends that, should the literal wording of the act confine the act, in its operation, to those employees only who are employed for pecuniary gain or profit of the state and its subdivisions, then the literal wording must be found to be in conflict with the express purpose and intent of the act, and that such intent must be allowed to prevail. By the earlier provision of the act, every person in the service of the state, except officers holding for a regular term of office, is mentioned as being included within its operation. That provision, however, is not more general in its terms than the like provision covering private employments. It is necessary for the court, then,...