Abel Construction Co. v. Goodman

Dean, J. While employed by the Abel Construction Company, and earning $24 a week, William K. Goodman, defendant, sustained an injury, November 6, 1918, that caused him to lose the sight of his left eye while he was cleaning cement sacks. Thereupon plaintiff paid him $12 a week for 25 weeks, as compensation, and $50 for medical treatment. Thereafter plaintiff refused to make further weekly payments, but offered to pay $350 or $400, presumably in full settlement, which defendant refused. On June 25, 1919, the employer filed a petition in the compensation commissioner’s office asking that officer to order a discontinuance of further payments. The commissioner denied the application and made an award to defendant of $12 a week for 100 weeks as compensation on account of the injury. The award was in addition to the $300, or $12 a week for 25 weeks, that plaintiff formerly paid the defendant in this behalf. The award, however, excepted $32 from the total amount to be paid; the commissioner holding that this sum was paid by plaintiff “after temporary disability ended.” From the award plaintiff appealed to the district court. On appeal the court held that defendant was entitled to compensation for 100 weeks only, and that, compensation for 25 Aveeks having already been paid, there remained only 75 weeks for Avhich payment could lawfully be demanded at $12 a AAreek. The payments being then delinquent, judgment was rendered against the plaintiff for $900 and interest, or a total of $912. The court also held that defendant was entitled to recover $414 for statutory waiting time, making a sum total of $1,326 and costs, for which, on October 23, 1920, judgment was rendered. In addition thereto the court taxed an attorney’s fee of $200 as costs. Plaintiff contends that the court erred in permitting defendant to recover either for an [702] attorney’s fee or for statutory “waiting time.” From the judgment plaintiff appealed to this court. The record shows clearly enough that the sight of defendant’s left eye was destroyed while he was in the employ of plaintiff and that the accident arose out of and in the course of his employment. The circumstances attending the casualty bring it within section 3662, Rev. St. 1913, as amended by Laws 1917, ch. 85, sec. 7, which classifies certain injuries and establishes a schedule of compensation. The act as amended is separated into three parts. Subdivision 3 provides, inter alia-. “For all disability resulting from permanent injury of the following classes,” i. e„ for the loss of a hand, arm, foot, leg, or eye, “the compensation shall be exclusively as follows: * * * For the loss of an eye, sixty-six and two-thirds per centum of daily wages during 100 weeks,” but “shall not be more than twelve dollars per week, nor less than (six' dollars per week: Provided, that if at the time of injury the employee receives wages of less than six dollars per week, then he shall receive the full amount of such wages per week as compensation.” Subdivision 3 also provides: “Permanent loss of the bise of a hand, arm, foot, leg, or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg, or eye.” ; The legislature having, provided that “for all disability resulting” from the loss of an eye “the compensation ■shall be exclusively” as provided in subdivision 3 of the act, defendant comes clearly within its meaning. It follows that defendant, earning a weekly wage of $24, was, under the act, entitled to $12 a week as compensation for 100 weeks, namely, $1,200. In making the reduction of $300 .from the commissioner’s award the district court applied the plain and unambiguous language of the law to the facts. Hull v. United States Fidelity & Guaranty Co., 102 Neb. 246. Plaintiff contends that, because the commissioner rendered an excessive award of compensation in the sum [703] of $300, it should not be bound to pay the statutory waiting time penalty, and argues, but erroneously, that it comes within the rule announced in Updike Grain Co. v. Swanson, 104 Neb. 661. It was there held that to excuse the employer from such liability there must be a reasonable controversy between the parties as to liability for certain instalments of compensation. In the present case reasonable grounds do not appear for controversy respecting the duty of the employer to pay the remaining 75 instalments. It is clear that the award of the commissioner was excessive as to 25 weekly instalments of $12 each. It is equally clear that the employee had been blinded in one eye, and that he was then entitled, under the facts and the law, to 75 additional weekly instalments of compensation in the sum of $12 each. And it just as clearly appears that it was plaintiff’s duty to have continued making the payments required by law until the end of the 100-week period instead of applying to the commissioner for an order to have the payments discontinued. But, having sought to have the commissioner’s award reviewed, the appeal at most should have been directed to seeking a reduction of the award to a payment of compensation for 75 weeks. To say that the employer ignored or that it misconstrued the clear provisions of. the law is no answer to the employee’s demand for payment for “waiting time,’’ under the act, which he cites and sets out in his brief, and which plainly provides that “fifty per centum, shall be added for waiting time for all delinquent payments after 30 days’ notice has been given” of disability. Rev. St. 1913, sec. 3666, as amended, Laws 1917, ch. 85, sec. 9%. The employer, in extenuation, points out that, within two weeks after completing the $300 payment to its employee, it, as plaintiff, began this proceeding June 25, 1919, before the compensation commissioner to have further payments discontinued, and that through no fault of plaintiff the matter was not heard and disposed of until September 9, 1920, more than 14 months after the [704] commencement of the proceedings, and that in the exercise of its statutory right it appealed to the district court. Even go, it does not follow that the employee, who did not cause the delay, should be denied a lawful right merely because the employer failed in the performance of a plain legal duty. Ignorance of the law is not a shield from liability for its infraction. We think the court erred in the taxation of an attorney’s fee as costs, notwithstanding the Ocean Accident & Guarantee Corporation, Limited, the insurer • of the employer, by some means that it is not necessary to discuss here, seems to have become a party plaintiff after the case reached the district court. In support of his argument on this point defendant invokes section 3212, Rev. St. 1913, as amended, Laws 1919, ch. 103, sec. 2.' For the purpose of this discussion the amendment is not material. The act as amended reads: “In all cases where the beneficiary, or other person entitled thereto, brings an action at law upon any policy of life, accident, liability, sickness, guaranty, fidelity or other insurance of a similar nature, or upon any certificate issued by a fraternal beneficiary association, against any company, person or association, doing business in this state, the court upon rendering judgment against such company, person or association, shall allow the plaintiff a reasonable sum as an attorney’s fee in addition to the amount of his recovery, to be taxed as part of the costs, and if such cause is appealed the appellate court shall likewise allow a reasonable sum as an attorney’s fee for the appellate proceedings.” It is sufficient answer to say that the present case is not “an action at law upon any policy of life, accident, liability, * * * or other insurance.” It follows that section 3212 has no application to a cause brought under the employers’ liability act. The’ statute under which this action is brought provides a special proceeding for the purpose of effecting a speedy settlement between an employer and his employee when they come within its [705] provisions. United States Fidelity & Guaranty Company v. Wickline, 103 Neb. 21, 6 A. L. R. 1267; Hull v. United States Fidelity & Guaranty Co., 102 Neb. 246. There is some question, as plaintiff points out, with respect to the regularity of defendant’s cross-appeal, but we have treated it as though it had been regularly made, and conclude that he is not entitled, to recover thereon. With respect to the taxation of an attorney’s fee as costs the judgment is reversed. In all else the judgment is affirmed, except that as to the statutory waiting time penalty it is ordered that the district court modify its judgment so that the total amount of defendant’s recovery for waiting time shall be the sum of $6 a week for 75 weeks. Affirmed in part, and reversed in part and remanded, WITH DIRECTIONS. Rose, J., not sitting.