Selders v. Cornhusker Oil Company

• Decision Date: 07 December 1923
• Docket Number: 23641
• Citation: 196 N.W. 316,111 Neb. 300
• Parties: H. E. SELDERS, APPELLEE, v. CORNHUSKER OIL COMPANY, APPELLANT
• Court: Nebraska Supreme Court

196 N.W. 316

111 Neb. 300

H. E. SELDERS, APPELLEE, v. CORNHUSKER OIL COMPANY, APPELLANT

No. 23641

Supreme Court of Nebraska

December 7, 1923

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

Kennedy Holland, DeLacy & McLaughlin and E. M. Clennon, for appellant.

Clifford L. Rein, contra.

Heard before MORRISSEY, C. J., ROSE, DAY and GOOD, JJ., REDICK District Judge.

OPINION

ROSE, J.

This is a proceeding under the workmen's compensation law. Defendant was engaged in selling gasoline and oil at Thirteenth and High streets in Lincoln, where it had a filling station in which plaintiff was an employee. While he was performing the duties of his employment in the basement during a rain storm July 6, 1922, the outside door was suddenly forced open by a rush of water. Before plaintiff could escape through a trap-door he was overtaken by the water, and his back, as alleged, was permanently injured by debris violently carried into the basement by the flood. After the injury he filed with the compensation commissioner a claim for compensation. From an award in his favor defendant appealed to the district court, where he recovered a judgment for $ 140 and compensation at the rate of $ 13.33 a week. Defendant has again appealed.

It is argued that the judgment should be reversed and the proceeding dismissed for the following reasons: Plaintiff did not claim compensation within six months from the date of his alleged injury, as required by the workmen's compensation law, and consequently his proceeding is not maintainable. Comp. St. 1922, sec. 3056. The injury for which plaintiff claims compensation was not sustained in the course of his employment. Are these positions tenable?

The accident occurred July 6, 1922. The claim was not filed with the compensation commissioner until April 17, 1923, an intervening period of more than nine months. There is testimony tending to prove these facts: Plaintiff was afflicted with a cold after he had been in the water July 6 1922, but continued to perform his duties at the filling station until July 26, 1922. His health and strength appeared to be failing gradually, but he did not know the cause and consulted physicians who did not give him permanent relief or discover the nature of his disorder until it was disclosed for the first time by means of X-rays in 1923. A lumbar vertebra had been fractured. Promptly after this discovery plaintiff applied to the compensation...