#### Swift & Company, appellant, v. Foy S. Prince, appellee.

Filed June 23, 1921.

No. 21998.

1. Master and Servant: Workmen’s Compensation: Appeal: Conflicting Evidence. Where the district court in a workmen’s compensation case finds, on substantially conflicting evidence, that the employee was injured in a particular manner, such finding of fact will not be reversed on appeal unless clearly wrong.

2. -: -: Penalty. *Held,*that a reasonable controversy existed in this case between the employer and the employee as to liability for compensation, and that the employer is not liable for 50 per cent, penalty added for waiting time for delinquent payments.

*359Appeal from the district court for Douglas county: Arthur C. Wakelex, Judge.

*Affirmed in*part, *and modified in part.*

Gurley, Fitch, *West*cG Hickman, for appellant.

T. J. McGuire, *contra.*

Heard before Morrissey, C. J., Aldrich, Flansburg and Rose, JJ., Begley and Leslie, District Judges.

Begley, District Judge.

This is a proceeding under the workmen’s compensation act. On December 11, 1919, Foy S. Prince was employed by Swift & Company as demurrage clerk, doing special \vork out of the superintendent’s office, receiving as his wages the sum of $27.50 a week, and on said date he received personal injuries causing the second vertebra of his neck to be broken. He applied for and received an award of compensation from the compensation commissioner of the state of Nebraska. From this award Swift & Company appealed to the district court, where it filed a petition admitting the relationship of employer and employee; that both were bound by the workmen’s compensation act; and that defendant received an injury on December 11, 1919, while engaged in the employ of Swift & Company, consisting of the fracture of the second vertebra of his neck; and further alleging that “said injury was caused by the defendant engaging in fooling, scuffling and horseplay with one McLaughlin, all of which was not a part of nor incident to said defendant’s employment; and plaintiff contends that said injuries did not occur in the course of nor arise out of defendant’s employment, and therefore he cannot recover compensation under aforesaid law.” Defendant filed an answer in which he alleged that an injury was received while in the course of and arose out of his employment; that plaintiff had notice of same, and told defendant and others .that it would compensate defendant therefor.

The district court found that Prince sustained his injury *360as the result of an accident arising out of and in the course of his employment, and that- at thé time he sustained such injury he Avas not engaged in any -playful or. sportive acts of any kind Avith any person, and that he had no knowledge of any playful or sportive acts being perpetrated, and awarded him compensation in the sum of $15 a week for 30-0 weeks and 45 per cent, of his Avages, or $12 a week for the remainder of his life, all medical and hospital expenses provided by laAV, $7.50 a week from the 11th day of December, 19-19, to the date of the decree, February 18; 1921, being a 50 per cent, penalty added for waiting time;-and $60-0 for attorney fees. SAvift & Company has noAV brought the case to this court for review.

It-will be noted that the question to be determined'is primarily one of fact as to Iioav the injury occurred. The defendant testified - that his duties Avere Avatching and taking the -temperature of meat in various cooling-rooms and- inspecting cars for loading as to temperature, icing, etc.; that his headquarters *was*in the checkers’ office, Avhich Avas a room adjoining the shipping-room with a door opening between; that he was using a thermometer and a flashlight for the purpose of his work, which he kept in the shipping-room for safe-keeping; that both rooms were poorly lighted, and on the morning in question he went from the shipping-room into the-checkers’ office, when he discovered he did not have his flash-light, and turned to go back to the shipping-room to get it, when he-“bumped” into one James L. McLaughlin, a government meat inspector, Avhose duties required his presence in and about the shipping and checking-rooms; that he do^-s not remember what happened after that, and Avhen he recovered consciousness McLaughlin Avas assisting him to arise; that there was no wrestling, scuffling, or horse-play, or anything of that nature with McLaughlin or any one else on that day; that he Avas thereupon taken to a hospital where an X-ray examination showed that the second vertebra of his neck Avas broken, which is a permanent injury. His testimony is corroborated by that of McLaugh*361lin. Two employees of the company, who were present at the time testified that there was' no Avrestling, scuffling, or horse-play, or anything of that nature, at the time of the accident. One employee Avho Avas present • testified that Prince and McLaughlin Avere scuffling; but he was at ATOrk, with his back turned, and did not see the accident.

Appellant claims to have successfully impeached the testimony of Prince and McLaughlin by the introduction of written statements signed by them, in which they stated that at the time of the accident they Avere engaged in scuffling and fooling, and also by evidence of oral statements to the same effect made by Prince. Prince and McLaughlin ■ explained the circumstances attending, the signing of the statements by testifying that they were prepared by the attorney for Swift & Company, and upon being presented to them for signature they objected to'the statements, and both were induced to sign on- the representation of the attorney for Swift & Company that it was merely a plant record and a matter of form for the benefit of the Chicago office ; that Prince had always been a reliable and trustworthy employee, and that Swift & Company would do Avhat was right by him, and that he had nothing to worxy about; that after signing said statement Prince Avas paid $15 a week for 13 weeks by -S-wift & Company, which he supposed was compensation, but, upon the hearing before the compensation commissioner, learned that the same was from some Avelfare fund of the company. Prince also denied, making any oral statements except in the office-of Dr. Lord, to whom he was sent by Swift & -Company after making the written statement to them. If this evidence is to be believed, the writings signed by-the witnesses- are of little or- no value.

The trial court saw.the witnesses and-heard their testimony, and its findings, upon conflicting eridence, should not be disturbed. It is the rule in cases of this kind that findings of fact, supported by sufficient evidence, or findings of fact on substantially conflicting evidence, will not be reversed unless clearly wrong. *American Smelting &**362*Refining Co. v. Cassil,*104 Neb. 706; *Christensen v. Protector Sales*Co., 105 Neb. 389.

The appellant further urges that the court erred in finding that Prince was entitled to recover $7.50 a week from December 11, 1919, to the date of the decree, on the ground that there was a reasonable controversy between the parties hereto, and with this contention we are inclined to agree. Where the appellee furnishes a written statement over his own signature which shows that no liability is attached by reason of the accident, the same furnishes a reasonable ground for the employer to withhold payment of compensation and to have that statement tested in a court of competent jurisdiction.

Objection is also made as to the amount of allowance for attorney fees, but the same is not so disproportionate to the services rendered as to cause a reversal. The findings and awards of the district court are therefore affirmed in all instances, except the finding and awarding Prince $7.50 a week from December 11, 1919, to February 18, 1921, which is set aside, and the proceedings remanded, with direction to the district court to reform the decree to comply with these views.

Affirmed in part and modified in part.