Sentor v. City of Lincoln

• Decision Date: 17 February 1933
• Docket Number: 28634
• Citation: 246 N.W. 924,124 Neb. 403
• Parties: ROY SENTOR, APPELLANT, v. CITY OF LINCOLN, APPELLEE
• Court: Nebraska Supreme Court

246 N.W. 924

124 Neb. 403

ROY SENTOR, APPELLANT, v. CITY OF LINCOLN, APPELLEE

No. 28634

Supreme Court of Nebraska

February 17, 1933

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

1. " In the workmen's compensation law the provision that the word ‘ employee' shall not be construed to include ‘ any person whose employment is casual, and which is not in the usual course of the trade, business profession or occupation of his employer,' means conjunctively both casual employment and usual course of trade." Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645.

2. Performance of a duty required by law is a part of the business of the city of Lincoln, within the contemplation of the compensation law.

3. Injury received while employee is engaged in work incidental to his employment arises out of and in the course of his employment.

4. From evidence, determined that plaintiff's disability due to injury resulting from accident.

Appeal from District Court, Lancaster County; Broady, Judge.

Suit by Roy Sentor against the City of Lincoln. From a judgment in favor of the defendant, the plaintiff appeals.

Reversed, and cause remanded, with instructions.

Perry, Van Pelt & Marti, for appellant.

Max Kier and Lloyd E. Chapman, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

DAY, J.

This is a suit brought under the workmen's compensation act to recover for an injury received in the course of plaintiff's employment by the city of Lincoln. The city employed plaintiff, with others, to clean the snow and slush from street intersections. The city owned a machine for this purpose, but in order to relieve unemployment at the time in question was doing the work by hand labor. For the same reason and to benefit a greater number, the employment was for one day at a time. The trial court was of the opinion that at the time of the accident the employment of the plaintiff was casual, within the meaning of the workmen's compensation law. Section 48-115, Comp. St. 1929, in so far as applicable to the present situation is: "It shall not be construed to include any person whose employment is casual, and which is not in the usual course of the trade, business, profession or occupation of his employer. The term 'casual' shall be construed to mean 'occasional; coming at certain times without regularity, in distinction from stated or regular.'" This section of the statutes has been construed in Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645, as follows: "In the workmen's compensation law the provision that the word 'employee' shall not be construed to include 'any person whose employment is casual, and which is not in the usual course of the trade, business, profession or occupation of his employer,' means conjunctively both casual employment and usual course of trade."

It is argued by the attorneys for the city of Lincoln that the employment of the plaintiff was not within the regular trade, business, profession or occupation of the employer. The basis of this argument is that it had been the custom to clean the snow and slush from the intersections with a machine, and that it was not within the regular business of the city to do this work by hand labor. Although this argument is ingenious, it is not persuasive. Section 15-263, Comp. St. 1929, enjoins upon the city of Lincoln the duty to care for the streets. The nature and extent of this duty has been discussed by this court in Chapman v. City of Lincoln, 84 Neb. 534, 121 N.W. 596, and City of Lincoln v. Janesch, 63 Neb. 707, 89 N.W. 280. The performance of a duty required by law is a part of the business of the city of Lincoln, within the contemplation of the compensation law. In so far as this case is concerned, it is immaterial whether the city performs this task by hand labor or by machinery. The test is whether the employment was in furtherance of the business of the city, and not in the manner or method adopted in the performance of said duty.

The evidence in this case is that the injury occurred while the defendant was on his way from the building of the street department to the place...