The injury occurred on November 3, 1917. The plaintiff suffered an impacted fracture of the upper end of his left thigh bone. He was in a hospital from November 3, 1917, to January 11, 1918, and again from July 18, 1918, to October 3, 1918. The fracture did not unite. It will not unite unless there is another operation. Such operation would be dangerous and of doubtful result. It is not to be advised. He is upwards of 60 years of age. He suffers great pain and is nervous. If he had suffered the loss of a leg, and the result had been ordinarily favorable, he would by this time be in a condition of partial disability only. His disability up to this tme is total. He has suffered more than the loss of the use of his leg. Its use is gone and up to the present time the rest of his body is useless for any working purpose. The condition of the fracture so affects his hips and other parts of his body and there is such attendant pain that he can remain sitting for no considerable length of time. He cannot employ himself in work which may be done by one sitting; nor is there any work suggested which he may do. So the trial court finds. It may be noted in considering the seriousness of his injury that the packing company furnished him the best possible treatment and hospital service to effect a good result. It expended in that behalf $562.25, while the statute strictly requires but $100. The commendable effort of the company to effect a good result has resulted no more beneficially than we have stated. Dudley was receiving wages at $18.50 per week and he was awarded compensation on the basis of 60 per cent. or $11.10 per week for 300 weeks. This is the maximum in amount and time allowed for a temporary total disability. It is also the maximum in amount, and in time allowed, for a permanent partial disability. The relator contends that the provision of the statute that the permanent loss of the use of a member shall be compensated on the basis of the loss of the member, which is in lieu of all other compensation, fixes the maximum compensation at 60 per cent of daily wages for the period of 175 weeks; and that an award beyond such period is not sustained. The provision for 60 per cent. of wages for 175 weeks is in the portion of the statute referring to permanent partial disability. It is in connection with other provisions fixing a definite award for definite injuries. The compensation is for a definite period, a full period of 175 weeks, not for a maximum period of 175 weeks with a possible lesser minimum. We do not find authorities construing a provision quite like our statute and we confine our holding to the precise question before us. While the relator's contention is pressed with force, it is our view that it was not intended by the statute to limit compensation for such an injury as we have here to compensation for the loss of a leg. The statute is to be construed l'berally in favor of the employee. Dudley at the time of the trial and from the date of his injury suffered a total disability, assumed to be temporary, and was entitled to compensation accordingly. It does not appear that the disability will be less within the period of 300 weeks. The parties have such right to a readjustment, if occasion comes as the statute gives them. G. S. 1913, § 8222; State v. District Court, 136 Minn. 147, 161 N. W. 391; Hunnewell's Case, 220 Mass. 351, 107 N. E. 934. Order affirmed. AMERICAN SMELTING & REFINING CO. v. CASSIL. (No. 21288.) (Supreme Court of Nebraska. June 19, 1920.) 178 Northwestern Reporter 639 MASTER AND SERVANT - FINDINGS ON SUBSTANTIALLY CONFLICTING EVIDENCE CONCLUSIVE. On appeal from the district court to the Supreme Court in a workmen's compensation case, findings of fact supported by sufficient evidence and findings of fact on substantially conflicting evidence will not be reversed unless clearly wrong. (For other cases, see Master and Servant, Dec. Dig. § 418[6].) Rose, J., dissenting. Appeal from District Court, Douglas County; Redick, Judge. Claim by Catherine Cassil, widow of A. C. Cassil, deceased employee. against the American Smelting & Refining Company, employer, for compensation under Workmen's Compensation Act. Claim allowed by Compensation Commission with deductions, and the employer appealed to the district court, where the claim was disallowed and the proceeding dismissed, and the claimant appeals. Affirmed. Wm. J. Hotz and George A. Lee, both of Omaha, for appellant. MORRISSEY, C. J. Under the Workmen's Compensation Act (Laws 1913, c. 198) Catherine Cassil, defendant, presented to the Compensation Commissioner, on account of the death of her husband, A. C. Cassil, a claim against the American Smelting & Refining Company, for $12 a week for 350 weeks and $100 for expenses of his last illness and funeral. On the premises of plaintiff defendant's husband was shot by Terrence Casey at night, Janua v 27, 1919, and died the next morning. Plaintiff is engaged in the smelting nd the refining of ores in Omaha. At the time of the shooting Cassil w. s assistant superintendent of a department, and Casey was head watchman. of that plant. Defendant contends that the death of her husband was caused by an accident "arising out of and in the course of his employment" within the meaning of those words as used in the Workmen's Compensation Act. Rev. St. 1913, § 3642. It is conceded by plaintiff that the homicide occurred in the course of Cassil's employment, but it is insisted that it did not arise out of such employment, being, from the standpoint of plaintiff, solely the result of a quarrel between Cassil and Casey over personal matters. The Compensation Commissioner allowed the claim of defendant, but deducted therefrom $1,690 which she had received as insurance carried by plaintiff on the life of her husband. From the award of the Compensation Commissioner plaintiff appealed to the district court for Douglas county. There the claim of defendant was disallowed. From a dismissal of the proceeding she has appealed to the Supreme Court. The district court found that the death of Cassil arose out of a personal quarrel between him and Casey, and held that therefore defendant was not entited to compensation. On review what is the effect of this finding? The Workmen's Compensation Act provides: Any appeal from such judgment shall be prosecuted in accordance with the general laws of the state regulating appeals and actions at law except that such appeal shall be perfected within thirty days." Rev. St. 1913, § 3680, as amended by Laws 1917, c. 85, § 15, The Workmen's Compensation Act further provides: "All disputed claims for compensation or for benefits under this article must be submitted to the Compensation Commissioner for an award. If either party at interest is dissatisfied with the award of the Compensation Commissioner, then the matter may be submitted to the district court of the county which would have jurisdiction of a civil action between parties, either at or during a regular term of the district court of said county or during any portion of time between the regular term time of the district court of said county, which court shall have authority to hear and determine the cause as in equity and enter final judgment therein determining all questions of law and fact in accordance with the provisions of this article, which judgment shall be final and conclusive unless reversed dismissed, or modfied, on appeal or otherwise modified pursuant to the provisions of this act." Rev. St. 1913, § 3678, as amended by Laws 1919, c. 91, § 5. These provisions, in connection with the Workmen's Compensation Act as a whole, were intended to simplify the procedure in cases of this kind and to do away with a jury in determining the issues. Any appeal from the judgment of the district court, however, must be prosecuted in accordance with the general laws of the state regulating appeals in actions at law. It follows that a finding of the district court on an issue of fact in a compensation case should not be set aside on appeal where it is supported by sufficient evidence, or where the evidence is substantially conflicting, unless the finding is clearly wrong. Manning v. Pomerene, 101 Neb. 227, 162 N. W. 492; Miller v. Morris & Co. 101 Neb. 169, 162 N. W. 417; Kanscheit v. Garrett Laundry Co., 101 Neb. 702, 164 N. W. 708; Anderson v. Kiene, 103 Neb. 773, 174 N. W. 301. This is the general rule elsewhere. L. R. A. 1916A, note, p. 266. It is adopted here as being in harmony with the Workmen's Compensation Act of this state. In the present case there is ample evidence to sustain the judgment from which defendant has appealed. With the issues of fact thus determined, there is no error in the record. Affirmed. Aldrich and Day, JJ., not sitting. ROSE, J. (d'ssenting). I interpret the Workmen's Compensation Act to mean that an appeal from the Compensation Commissioner shall be tried in the district court, as a suit in equity. The district court, says the statute, "shall have authority to hear and determine the cause as in equity." In my opinion the Legislature, having made the appeal from the Compensation Commissioner to the district court a suit in equity, did not intend to make the appeal from the district court to the Supreme Court an appeal in an action at law, and thus prevent a trial de novo here. The proceeding, being designated by the Legislature as one in equity should be reviewed in the Supreme Court without regard to the findings of fact by the district court. The opinions in Miller v. Morris & Co., 101 Neb. 169. 162 N. W. 417, Kanscheit v. Garrett Laundry Co., 101 Neb. -702, 164 N. W. 708, and Anderson v. Kiene, 103 Neb. 773, 174 N. W 301, were rendered without referring to that part of the Workmen's Compensation Act requiring the district court to try cases of this kind as suits in equity, and should in my view of the law be overruled. I have considered the evidence in the present case with care, and while there is sufficient proof to sustain the findings below, I am fully convinced that the preponderance of the evidence is in favor of defendant, that the quarrel which resulted in the death of Cassil arose out of his employment, and that defendant is entitled to compensation. For these reasons, as I view the law and the facts, the judgment of the district court should be reversed. UPDIKE GRAIN CO. v. SWANSON. (No. 21443.) (Supreme Court of Nebraska. June 7, 1920.) (Syllabus by the Court,) 1 MASTER AND SERVANT-"DELINQUENT PAYMENT" UNDER COMPENSATION ACT DEFINED. Under a statute providing that a penalty be added for all delinquent payments under the Workmen's Compensation Act (Rev. St. 1913, § 3666, as amended by Laws 1917, c. 85. § 91⁄2, and Laws 1919, c. 91, § 4), held that, where there is a reasonable controversy between the employer and the employee as to liability for certain ins. allments of compensation, the payments of such compensation do not become due, in the sense that they may become delinquent, until the obligation of the company is definitely ascertained or settled. (For other cases, see Master and Servant, Dec. Dig. § 3912, New vol. 7A Key-No Series.) 2. MASTER AND SERVANT COMPENSATION CLAIMANT HELD NOT ENTITLED TO ATTORNEY'S FEES. Where a statute allows the employee to recover attorney's fees, in case an order for compensation is made in his favor, and in event the employer refuses to abide by the order, but appeals, and on appeal fails to reduce the award, held, that, the power to allow attorney's fees being statutory, the court has no authority to allow them where the employ himself appeals, though by such appeal the award is increased, nor to allow fees where it is shown that the employer, upon the rendition of the award, instead of appealing, offers to pay it. (For other cases, see Master and Servant, Dec. Dig. § 420 ̧> Appeal from District Court, Douglas County. Șears, Judge. Action by Albert Swanson against the Updike Gram Company to recover under the Workmen's Compensation Act a penalty for delinquency in the payment of compensation and to recover attorney's fees. denied, and Swanson appeals. Affirmed. See, also, 103 Neb. 872, 174 N. W. 862. Myers & Mecham, of Omaha, for appellant. Gurley, Fitch West & Hickman, of Omaha, for appellee. Relief FLANSBURG, J. Action to recover under the Workmen's Compensation Act (Rev. St. 1913, § 3666, as amended by Laws 1917. c. 85. § 91%.-and Laws 1919, c. 91. § 4), a penalty by reason of alleged delinquency in payVol. VI-Comp 31. ment of compensation, and to recover attorney's fees. The trial court denied the relief, and Swanson, the petitioner, appeals. The case is presented here on the transcript alone, showing the petition of Swanson, the answer of the company and the decree of the court. No reply was filed, and the allegations of new matter in the answer therefore stand admit ed. Swanson, while an employee of the Updike Grain Company, was injured July 12, 1918. The company recognized its liability and paid to him his medical and hospital expenses, and $12 per week for a period of 17 weeks. On July 11, 1919, the company filed a petition with the Compensation Commissioner praying that definite award be fixed. The commissioner fixed the award at $12 per week for a period of 30 weeks, and, as the company had made payments for 17 weeks only, it developed, under this award, that the company was liable for 13 additional weeks, during a period prior to the rendition of the award, and wh.ch payments it had not, in fact, made. Swanson appealed to the district court, where the award was affirmed. The company, it appears, was satisfied with and was ready and willing to abide by both the award of the Compensation Commissioner when rendered, and the judgment of the district court affirming it and offered payment at that time of the amounts determ ned to be due. Swanson again appealed from the judgment of the district court to the Supreme Court, and on November 15, 1919, the Supreme Court increased the award by ordering payments of $12 per week for a period of 45 weeks over and above what had been allowed by the Compensation Commissioner and the judgment of the district court, making a total award of $12 per week for 75 weeks. Updike Grain Co. v. Swanson, 103 Neb. 872, 174 N. W. 862. Upon the filing of the mandate in the district court, the company paid all installments, with interest, for the 13 and 45 weeks, as required under the increased awards. [1] The statute (Rev. St. 1913, § 3666, as 'amended Laws 1917, c. 85,9%) reads as follows: "Except as hereinafter provided, all amounts of compensation paya ble under the provisions of the article shall be payable periodically in accordance with the methods of payment of the wages of the employee at the time of the injury or death. Provided, fifty per centum shall be added for waiting time for all of delinquent payments after 30 days notice has been given of disability." The words "of disability" were added by the amendment effective in July, 1919 (Laws 1919, c. 91, § 4). Did the installments for the 13 and 45 weeks, provided for under the increased awards, become delinquent within the provisions of that statute? The statute contemplates some sort of notice to the employer or knowledge of the duty required of him, and 30 days' opportunity to act, in order that he may perform the duty and avoid default and the resulting penalty. It is argued that no notice was required in this case, since the employer is shown to have been fully apprised of the injury and the disability resulting. We need not take up the question of notice, as we find that in no event was there any delinquency on the part of the company. The company paid the medical bill and hospital expenses and installments for 17 weeks. It does not appear that Swanson made demand or claimed to be entitled to further payments. On the other hand, it is the company that instituted the proceedings before the Compensation Commissioner for the purpose of procuring a definite determination of the amount due. The company did not, until the time when the award was made, have notice that it was liable for 30 installiments, instead of 17; nor can it be said that these additional installments become due prior to the award, since the liability of the company until that was uncertain. |