SUPREME COURT OF NEBRASKA.

MYERS

V.

ARMOUR & CO. (No. 20941.)*

MASTER AND SERVANT - WORKMEN'S COMPENSATION — COMMUTATION OF PAYMENTS—AGREEMENT OF PAR

TIES.

Under the Workmen's Compensation Act, commutation and payment in a lump sum by order of the district court are authorized only in the exercise of a sound discretion upon an agreement or a settlement by the parties.

(For other cases, see Master and Servant, Dec. Dig. § 385[20].)

Appeal from District Court, Douglas County; Troup, Judge.

Proceedings under the Workmen's Compensation Act by Elsie Myers, administratrix of the estate of Joseph J. Myers, deceased, for compensation for his death, opposed by Armour & Co. From a judgment allowing an award but refusing commutation and payment in a lump sum, administratrix appeals. Affirmed.

A. H. Murdock, of Omaha, for appellant.

Kennedy, Holland, De Lacey & Horan, of Omaha, for appellee.

ROSE, J. This is a proceeding under the Workmen's Compensation Act. While Joseph J. Myers was performing his duties as an employee of Armour & Co. in a packing house in Omaha September 4, 1918, a boiler exploded and fatally injured him; death ensuing a day later. He left surviving him his widow, Elizabeth Myers, age 26, and a daughter 2 years old. The widow was appointed administratrix of his estate. As, such, she instituted this proceeding before the compensation commissioner and applied for an order commuting the statutory compensation and requiring payment in a lump sum. The application was overruled, and the executrix appealed to the district court, where a judgment was rendered in her favor for the payment of $12 a week for 350 weeks and for funeral expenses in the sum of $100; but the application for a commutation and payment in a lump sum, being resisted by the employer, was overruled on the ground that such relief could not be granted without the consent of both parties. It is from this judgment that the executrix has appealed.

The employer concedes that the widow, for the benefit of herself and child, is entitled to $12 a week for 350 weeks and to $100 for funeral expenses. The only question presented is the authority of the district court, under the Workmen's Compensation Act, to order commutation and payment in a lump sum. The answer to the question depends on the meaning of the language used by the Legislature. The Workmen's Compensation Act provides

"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 district court; provided,

* Decision rendered, April 4, 1919. 172 N. W. Rep. 45. Syllabus by the Court.

that where commutation is agreed upon, or ordered by the court, the lump sum to be paid shall be fixed at an amount which will equal the total sum of the probable future payments, capitalized at their present value upon the basis of interest calculated at five per centum per annum with annual rests. Upon paying such amount the employer shall be discharged from all further liability on account of the injury or death, and be entitled to a duly executed release, upon filing which, or other due proof of payment, the liability of such employer under any agreement, award, findings, or decree shall be discharged of record.

"Whenever an injured employee or his dependents and the employer agree that the amounts of compensation due in periodic payments for death, permanent disability, or claimed permanent disability, under this article, shall be commuted to one or more lump payments, such settlement or agreement therefor, shall be submitted to the district court in the following manner:

"An application for the approval of such settlement, signed by both parties, shall be filed with the clerk of the district court, and shall be entitled the same as an action by such employee or dependents against such employer; or shall contain a concise statement of the terms of the settlement sought to be approved, together with a brief statement of the fact concerning the injury, the nature thereof, the wages received by the injured employee prior thereto, and the nature of the employment. The judge of the district court, immediately, or within one week after the filing of said application, unless there be good cause for continuance, at chambers or in open court and in or out of term time, shall hold a hearing on said application, and proof may be adduced, witnesses subpœnaed and examined, the same as in an action in equity. If, after such inquiry, the court finds said settlement fair, just, and for the best interests of said employee or his dependents under all the circumstances, he shall make an order approving the same. If such agreement or settlement be not approved the court may dismiss said application at the cost of the employer or continue the hearing, in the discretion of the court."

Laws 1917, c. 85, § 131.

This legislation was enacted to protect the dependents of employees. The regular method of exacting compensation is the requiring of periodical payments for a definite period. The system does not contemplate payments in large sums to dependents who may be improvident. The law was not framed to defeat the legislative aims. To prevent dependents from dissipating or losing their means of support, payments at stated times are required for definite periods an unnecessary construction which would defeat the intention of the lawmakers should be avoided. Payment in a lump sum is a departure from the general rule. When this method is followed, the authority for such a course should be found in the language relating to the exception. In the light of all of the legislation on this subject, the discretion of the district court in passing on applications for commutation seems to be invoked only where both parties have agreed to such a course. This construction is not refuted by the exception in the following provision:

"The amount 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 cornmuted only upon the order or decision of the district court."

The latter clause, in connection with the entire act, does not necessarily mean that the district court, in absence of an agreement for commu tation, may order payment in a lump sum to compensate a dependent for the death or for the permanent disability of the employee. Other provisions have a different import.

In the district court the procedure for commutation and payment in a lump sum in case of death or of permanent disability applies alone to

Vol. IV-Comp. 8.

agreements or settlements. A method of procedure in absence of a mutual understanding of the parties is not found in the statute. In overruling the application the trial court correctly interpreted the law.

Affirmed.

Cornish, J., not sitting.

SUPREME COURT OF NEBRASKA.

THOMAS
ບ.

OTIS ELEVATOR CO. ET AL. (No. 20387.)*

1. MASTER AND SERVANT-COMPENSATION ACT—INJURIES TO SERVANT BY ACT OF THIRD PARTY-RIGHT TO ENFORCE SUBROGATION.

Section 3659, Rev. St. 1913, is for the benefit of an employer, who has paid or is liable to pay compensation under the act to an injured workman. If the workman, who is injured by the negligence of a third party, obtains an assignment from his employer of his right to bring the action, it may be maintained directly by the injured workman against the negligent third party.

(For other cases, see Master and Servant, Dec. Dig. § 389.)

Appeal from District Court, Douglas County; Leslie, Judge. Action by Daniel M. Thomas against the Otis Elevator Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Gurley, Fitch, West & Hickman, of Omaha, for appellants.

J. C. Travis and John O. Yeiser, both of Omaha, for appellee.

LETTON, J. This is an action to recover damages for personal injuries, brought against the Otis Elevator Company and one Blackwell, one of its employees. Plaintiff recovered a judgment for $25,000 and defendants appeal.

Selden-Breck Company, builders, were erecting a hotel building in Omaha under a contract. Part of the work was sublet to a number of other concerns. The Otis Elevator Company, defendant, had a subcontract to install two elevators in the building, and the Omaha Iron Works had a subcontract to erect and furnish certain doors and metal work for the elevator shaft.

The plaintiff was a workman employed by the latter. On the morning of the accident, plaintiff who had been directed by his foreman the night before to clean up certain dirt and debris from the runway of the elevator door upon the fifth floor of the building, was engaged in this duty; part of his body projecting into the elevator shaft. The foreman of defendant elevator company and Blackwell were working upon an elevator in another elevator shaft across the hall, when some one called up that shaft to one of them, telling him the foreman, or superintendent, wanted to speak to him. The two men left the elevator upon which they were working, went to the south shaft, got into the elevator, *Decision rendered, April 4, 1919. 172 N. W. Rep. 53. Syllabus by the Court.

which was standing there, and, without giving any notice or warning, started the elevator downward. It struck the plaintiff at the next floor, and he fell five stories to the basement. The fall caused compound fracture of both legs, broke one arm, fractured his jaw, dislocated a number of his teeth, and otherwise severely sprained, bruised, and injured him. His injuries required a number of surgical operations, which resulted in shortening one leg about 11⁄2 inches more than the other one, which was also shortened. He suffered severe pain and agony, his knee was stiffened, and he is a cripple for life. He was a young man about 26 years of age, at that time, of strong physique, and was earning at the time of the accident from $85 to $90 and upwards per month, excluding overtime, and his expectancy of life was 37.14 years.

The particular grounds of negligence alleged in the petition are substantially that the work to be performed by the Elevator Company and the Iron Works was of such a character that it conflicted, and rendered the south shaft dangerous for the employees of both companies, if they were permitted to work in and about the shaft at the same time; that "said south elevator shaft was turned over to the Omaha General Iron Works, and that instructions were issued to these defendants that said south shaft was not to be used by them, nor was the elevator to be operated during working hours, until the completion of the work to be performed in the shaft by the Omaha General Iron Works"; that said work "was not in fact completed, and said Otis Elevator Company well knew, or ought to have known"; that the defendants, without notice of warning, or taking any precautions, and with full knowledge of the plaintiff's employment, and in breach of the instructions issued that they were not to operate said car in said south shaft during working hours, carelessly and negligently lowered the elevator in said south shaft from the sixth floor downward, striking plaintiff, etc.

In its answer defendant Otis Elevator Company denies generally most of the allegations of the petition, and denies that the plaintiff, while working for the Iron Works, sustained accidental injuries. It also pleads that under the Employers' Liability Act, where a third person is liable to the employee for injury, the employer shall be subrogated to his right against such third person, and that by reason thereof the plaintiff assigned his cause of action, if any, against said defendant to his employer, and is not a proper party to institute this action.

The reply alleges that the action was brought with the approval and under the direction of the Iron Works. It is further alleged that plaintiff had filed a petition in the district court, alleging the fact of the accident; that the Iron Works had directed him to prosecute it in his own name; that the Iron Works admitted its liability to plaintiff for compensation, and its willingness to assign its right of action against the Elevator Company, if approved by the court; and that the court authorized plaintiff to continue the prosection of this action and apply the proceeds, first, to the satisfaction of any claim plaintiff might have against the Iron Works for compensation, as provided by the agreement.

There is little dispute as to the facts, except perhaps with respect to whether there were instructions given by the general contractor to the defendant Elevator Company not to operate the car in the south shaft.

[1] The first complaint made is, that the plaintiff had no right to bring the action in his own name under section 3659, Rev. St. 1913. In Muncaster y. Graham Ice Cream Co. (No. 20421) 103 Neb. 172 N.

W 52, it was decided that the statute did not take away the right of the em ployee to recover damages against a third person when the relation of ma ster and servant does not exist; that the section was designed for the protection of an employer who had paid the compensation; that, if the employer's rights were protected, it was no concern of the negligent third par ty.

Furthermore, there was an agreement between the plaintiff and his

employer with respect to the bringing of this action, which was approved by the district court. Defendants under these circumstances suffered no prejudice and cannot complain.

[2] The next complaint is that the instructions failed to reflect the issues presented by the pleadings. It is insisted that the trial court, by instruction No. 3, submitted the case on the theory that if defendants knew, or in the exercise of ordinary care could have known, the plaintiff's position, it was the duty of the conductor in charge to give plaintiff some reasonable warning of his intention to cause the elevator to descend. As we read the petition, this ground of negligence was alleged, as well as others, and it was not error for the court to so instruct the jury.

[3] It is also complained that the court erred in saying in that instruction:

"It is admitted or established in this case that the work being performed by the plaintiff made it necessary or proper for him to be about or in the elevator shaft known as the south shaft."

It is said this part of the instruction was highly prejudicial to the defendants. It may be highly prejudicial, but there is no doubt that the statement of fact is correct. It was not disputed that the plaintiff had been ordered to clean up the runway or the doors, and that the position he assumed was proper for that purpose. This being the case, the court was justified in stating this to the jury. It is also complained that the evidence fails to show that the instructions as to not using the shaft were heard or understood by defendants. There is evidence that the superintendent of the Selden-Breck Company, while Blackwell was running the elevator a few days before, ordered it stopped during working hours for the reason that the use of the shaft was necessary for the iron workers to complete their work, and that the foreman of the defendant Elevator Company was present. The fact the use of the elevator was accordingly stopped is strong evidence that the foreman heard these instructions, and knew that the shaft was in use by the iron workers. It is immaterial whether or not defendant's foreman made an express agreement with the Iron Works. If he knew that the iron workers were using the shaft, and had been directed not to use the elevator, this was sufficient.

It is common knowledge that co-contractors, in working upon a building in process of erection, must take notice of facts and circumstances which demand that control of a particular part of the building for a limited time must be exercised by one or the other in order to avoid injuries to other workmen.

Considering all the testimony in the case, we are convinced that it supports the allegations of negligence, and that such negligence was the approximate cause of plaintiff's injury.

It

[4] The verdict was for $25,000. It is strongly urged that "this verdict is exorbitant"; that the amount invested at 6 per cent. would bring an amount largely in excess of plaintiff's normal income. In the beginning of this opinion we stated plaintiff's physical condition. clearly appears that, from being an active, strong and healthy young man, he has been made a deformed and helpless cripple for life. In addition to this the evidence is clear and positive as to the prolonged and excessive pain and agony which he endured while in the hospital and since. We belive the amount of the verdict is not excessive.

After the trial affidavits from two of the jurors were filed to the effect that the verdict was what is known as a quotient verdict. This evidence is not satisfactory. These affidavits were not made or filed until about three months after the trial. Furthermore, they do not show the jury had previously agreed to be bound by the result. Since the affidavits were not filed until the day the motion for a new trial was passed upon, there was no opportunity to obtain counter affidavits. The practice of atacking verdicts by the affidavits of part of the jurors long after the