Solomon v. A. W. Farney, Inc.

• Decision Date: 28 February 1936
• Docket Number: 29745
• Citation: 265 N.W. 724,130 Neb. 484
• Parties: JOE SOLOMON, APPELLEE, v. A. W. FARNEY, INC., APPELLANT
• Court: Nebraska Supreme Court

265 N.W. 724

130 Neb. 484

JOE SOLOMON, APPELLEE, v. A. W. FARNEY, INC., APPELLANT

No. 29745

Supreme Court of Nebraska

February 28, 1936

APPEAL from the district court for Cass county: DANIEL W LIVINGSTON, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Record examined, and held to support the judgment entered in the district court.

Appeal from District Court, Cass County; Livingston, Judge.

Proceeding under the Workmen's Compensation Act by Joe Solomon employee, opposed by A. W. Farney, Inc., employer. From a judgment of the district court upon appeal from the compensation commissioner, the employer appeals.

Affirmed.

Story & Thomas, for appellant.

W. G. Kieck and Clifford L. Rein, contra.

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

OPINION

EBERLY, J.

This is an action under the Nebraska compensation act brought by an injured employee, Joe Solomon, against A. W. Farney, Inc., the employer. There was a finding and judgment against the employer both before the compensation commissioner and upon appeal in the district court for Cass county. The determination was that, "as a result of said accident and injuries, the plaintiff has been ever since the date thereof and still is permanently and totally disabled." At the bar of this court, the employer, seeking a review, makes three contentions, viz.: (1) That the courts of Nebraska are without jurisdiction over the subject-matter of the action; (2) that the judgment is excessive; and (3) that the allowance of a $ 60 physician's fee is improper.

It is admitted that the employer is a Delaware corporation, having its principal place of business at Kansas City, Missouri. It appears that the place of contracting the work upon which the plaintiff was injured is located at Bridge Switch, Iowa; and that the formal contract of employment of the plaintiff by the defendant was entered into in the state of Iowa.

On this subject the plaintiff testifies as follows: "Q. Where were you employed? A. I got my card from the reemployment office here (Nebraska) and went across (to Iowa) and registered with them. Q. That is where you were employed? A. Yes, sir."

But it is established that on or about December 4, 1934, plaintiff was in the employ of the defendant as a "lumber jack" and common laborer in Cass county, Nebraska, and while so employed on said date and while engaged in the performance of his duties in the course of the regular business of the defendant, the plaintiff sustained personal injuries in an accident arising out of and in the course of his aforesaid employment when he slipped and fell while carrying lumber and strained his abdomen in such a manner as to cause a double inguinal traumatic hernia; further, that as a result of said accident and injuries the plaintiff has been ever since the date thereof and still is permanently and totally disabled.

While the uncontradicted evidence is that plaintiff was in defendant's employ for more than thirteen months, there is no affirmative evidence in the record that any part of plaintiff's services was performed in the state of Iowa. Under the facts established, there is no evidence which negatives the conclusion that the industry in which the plaintiff was employed at the time he received his injuries had its situs for the purpose of the workmen's compensation law at any other place save in Nebraska. The laws of the state last referred to on this subject are therefore controlling in this case, and their effect may not be modified by the contracts of the parties in derogation thereof.

The character and extent of plaintiff's injuries are not in serious controversy. A careful reading and evaluation of the evidence in the record, on the subject of compensation received, sustains the conclusion that at the time of said accident and injuries plaintiff's wages were...