Zurich General Accident & Liability Ins. Co., Ltd. v. Walker
| Decision Date | 30 January 1935 |
| Docket Number | 29075. |
| Citation | 258 N.W. 550,128 Neb. 327 |
| Parties | ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED, v. WALKER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
Neither the county court nor the district court have any original jurisdiction to determine the legality of a claim for compensation of an employee against his employer arising under the provisions of the Workmen's Compensation Act (Comp. St. 1929, §§ 48-101 to 48-161).
Appeal from District Court, Lincoln County; Nisley, Judge.
Action by the Zurich General Accident & Liability Insurance Company Limited, against Edward Walker, wherein the defendant filed counterclaim. Judgment for defendant and plaintiff appeals.
Judgment reversed and cause remanded with directions.
Wells C. Jones, of North Platte, for appellant.
Hoagland, Carr & Hoagland, of North Platte, for appellee.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, and DAY, JJ., and ELDRED, District Judge.
This action was originally filed in the county court of Lincoln county, by the Zurich General Accident & Liability Insurance Company, Limited, a corporation, as plaintiff, to recover from Edward Walker, defendant, premiums alleged to be due upon an employer's liability insurance policy, issued by said company, under the Workmen's Compensation Law, to said Edward Walker. The defendant, Walker, filed an answer and counterclaim which, in effect, admitted the execution of the policy, and, in substance, alleged that about the 28th day of January, 1932, while plaintiff was insuring defendant under the Workmen's Compensation Law, the defendant had in his employ one William Olson; that said William Olson, in the regular course of his employment, sustained an injury and was totally disabled until March 7, 1932; that he was treated by a physician on occasions up to April 4, 1932; that the reasonable value of medical services incurred was $117; that there became due $90 for the first six weeks of total disability, and $64 for the 50 per cent. partial disability or a total of $271, which plaintiff, as the insurer of the defendant, refused to pay, and the defendant became liable therefor, and was compelled to pay the same. Defendant alleges that under said policy the plaintiff agreed to pay promptly, to any person entitled thereto under the Workmen's Compensation Law, the entire amount of any sum due, and sets out provisions of the policy providing for payment of compensation for injury imposed upon the employer, and for medical services, under the compensation law; and providing further, that the provisions of the Workmen's Compensation Law shall be a part of the insurance contract.
A demurrer was filed by the plaintiff to the counterclaim, and, on adverse ruling, the question raised thereby was saved in the reply filed in that court, and was again carried forward and saved in the pleadings in the district court. The county court found against the defendant on his counterclaim, and the defendant appealed to the dis trict court. On September 9, 1933, the district court overruled plaintiff's demurrer to the defendant's counterclaim. Trial was had in the district court, without a jury, and on September 12, 1933, the court found there was due plaintiff from the defendant, on plaintiff's petition, $182.20; and further found that there was due defendant from plaintiff, upon defendant's counterclaim, $252.40. Judgment was entered on finding, in favor of the defendant and against the plaintiff, for $70.20, and costs. The motion of the plaintiff for a new trial being overruled, plaintiff has appealed.
The first question for consideration is: Was the action of the district court in overruling plaintiff's demurrer to defendant's counterclaim correct? The question raised by the demurrer, as well as by the other assignments of error involving rulings by the court during the progress of the trial, may be reduced to one proposition, that is: Did the county court, or the district court, on appeal from the county court, have any jurisdiction to determine the legality of the claim of William Olson against his employer, arising under the provisions of the Workmen's Compensation Law? Comp. St. 1929, §§ 48-101 to 48-161.
Appellee, in his brief, states the issues presented as follows: " Whether or not Edward Walker's agreement with William Olson on the amount of compensation for which he was liable could be offset against the claim of the insurance company for premiums?" But the counterclaim does not plead that there was any agreement between said Walker and said employee as to the amount of said compensation, nor make any reference to an agreement of that character. Further, it is not alleged in the answer and counterclaim, nor does the evidence taken on the trial disclose, that the legality of the claim involved herein was ever presented to the compensation commissioner; or that the compensation commissioner made any award thereon, or that he approved any settlement between the defendant and his employee; nor was it alleged in said answer and counterclaim that a copy of any settle ment between the defendant and his employee, Olson, was ever filed with the compensation commissioner.
In the district court some evidence was offered as to settlement on amount of compensation, and the trial court made some findings thereon. The case has been briefed and argued in this court on the theory that a settlement was agreed upon between defendant and his employee; hence, though not made an issue by the pleadings, we will consider the case upon the pleadings and the evidence.
The question presented to this court involves the consideration of several sections of the Workmen's Compensation Law.
Section 48-137, Comp. St. 1929:
Section 48-133: " All disputed claims for compensation or benefits shall be first submitted to the compensation commissioner, as provided in section 3680 (48-139)."
Section 48-120: " The employer shall be liable for reasonable medical and hospital services and medicines as and when needed, subject to the approval of the compensation commissioner."
Section 48-136: " The interested parties shall have the right to settle all matters of compensation between themselves in accordance with the provisions of this article: Provided, that a copy of such settlement shall be filed with the compensation commissioner, and no such settlement shall be binding unless in accord with the provisions of this article."
Section 48-140: " The amounts of compensation payable periodically under the law, by agreement of the parties with the approval of the compensation commissioner, may be commuted to one or more lump sum payments, except compensation due for death and permanent disability, which may be commuted only upon the order or decision of the...
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