Thomsen v. Sears Roebuck & Co.

• Decision Date: 05 July 1974
• Docket Number: No. 39333,39333
• Citation: 219 N.W.2d 746,192 Neb. 236
• Parties: Leona THOMSEN, Appellant, v. SEARS ROEBUCK & COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 746

219 N.W.2d 746

192 Neb. 236

Leona THOMSEN, Appellant, v. SEARS ROEBUCK & COMPANY, Appellee.

No. 39333.

Supreme Court of Nebraska.

July 5, 1974.

Syllabus by the Court

1. An accidental injury sustained by an employee on the premises where she is employed, during her lunch hour, in a lunchroom maintained by and under the control of the employer, for the exclusive use of its employees, is an injury arising out of and in the course of her employment.

2. The Workmen's Compensation Act should be liberally construed to the end that its beneficent purposes may not be thwarted by technical refinement of interpretation.

Matthews, Kelley, Cannon & Carpenter, P.C., Omaha, for appellant.

Douglas Marti, Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

McCOWN, Justice.

This is a workmen's compensation case. The one-judge Workmen's Compensation Court found for the plaintiff. A divided three-judge court reversed and dismissed, and the District Court affirmed the dismissal.

The plaintiff was employed as a sales-person in the defendant's store. She had been an employee for approximately 9 years. On November 30, 1971, plaintiff was scheduled to work from 9 a.m. until 6 p.m. She was required to punch a timeclock at the beginning of her scheduled hours of work and at the end of the workday. She had 1 hour allotted for lunch, to be taken at any time she wished so long as the sales floor was adequately covered by other personnel. Her pay was computed on the basis that she took the required 1 hour for lunch sometime during the scheduled workday. She was not required to punch the timeclock at the lunch break.

The defendant's store premises included a cafeteria open to the public and a separate lunchroom open only to employees. Employees were not required to eat lunch in the employees' lunchroom but were free to go where they pleased. From January 1 of each year until approximately Thanksgiving the employees' lunchroom had only vending machines which dispensed cold food and assorted beverages. A 'hot line' was put in service during the Thanksgiving-Christmas rush season. Daily announcements during the rush season reminded the employees of the availability of the employees' lunchroom for hot as well as cold food service. The convenience and quickness of utilizing this facility was emphasized. Food prices in the employees' lunchroom were generally the same as in the public cafeteria except that coffee was 5 cents less. All revenue from sale of the hot food line and a percentage of revenue from vending machines was received by the defendant. The operating superintendent testified that the lunchroom was intended for the convenience of the employees and that it helped to build good morale among them. Persons other than employees were prohibited from entering or using the lunchroom.

On November 30, 1971, the plaintiff left her sales department shortly before noon and went to the employees' lunchroom in the defendant's store for lunch. She had brought a sandwich from home and she purchased a salad and coffee in the lunchroom. After she had eaten and visited with friends for awhile, someone came in and informed her that her son had come for the car keys. She got up to leave the lunchroom, fell, and broke her hip.

The one-judge Workmen's Compensation Court held that the accident and injury arose 'out of and in the course of her employment.' One judge of the three-judge Workmen's Compensation Court on appeal concluded that plaintiff's accident and injury arose out of and in the course of her employment and was compensable. The other two judges held 'that injuries occurring to employees at the lunch hour do not arise out of and in the course of the employment unless the employer requires the employees to eat their lunch and spend the lunch hour on the defendant's premises; * * *.' The District Court affirmed, the judgment of dismissal entered by the Workmen's Compensation Court.

The sole issue on appeal is whether under the facts here, the accident and injury to the plaintiff, during her lunch hour and on the premises of the employer, arose out of and in the course of her employment. The most important and pivotal fact here is that the accident and injury occurred on the premises of the employer within the scheduled hours of employment. This court has been committed to the rule that an employee injured on the premises of the employer, where he works, while coming to work or leaving after work is within the course of his employment under the Nebraska Workmen's Compensation Act. McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456; Acton v. Wymore School Dist. No. 114, 172 Neb. 609, 111 N.W.2d 368.

We have also held that when an employee was assaulted and injured while eating lunch on the premises of his employer where the meal was furnished as a part of his wages, the injury was sustained in the course of his employment. Miller v. Reisch Co., 132 Neb. 338, 271 N.W. 853.

In Berry v. School Dist. of Omaha, 154 Neb. 787, 49 N.W.2d 617, we held that when an employee, who is employed to work at specific fixed premises, is injured while absent from those premises for the purpose of eating lunch during a lunch hour, the injury does not arise out of and in the course of the employment. In that case, a teacher was eating lunch at another school building where she had no services to perform in her employment, although the same school district was the owner of both buildings.

We have been cited to no Nebraska case which passes directly upon the specific issues involved here. Although this case on its facts is one of first impression in this State, the issues have been determined in many cases from other jurisdictions. The general rule is stated in 1 Larson, Workmen's Compensation Law, § 21.21(a): 'injuries occurring On the premises during a regular lunch hour arise in the course of employment, even though the interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that time and is in no degree under the control of the employer, being free to go where he pleases.

'There are at least four situations in which the course of employment goes beyond an employee's fixed hours of work: the time spent going and...