Aeschleman v. Haschenburger Company

• Court: Nebraska Supreme Court
• Writing for the Court: THOMSEN, District Judge.
• Citation: Aeschleman v. Haschenburger Company, 254 N.W. 899, 127 Neb. 207 (Neb. 1934)
• Decision Date: 22 May 1934
• Docket Number: 28977
• Parties: DUANE AESCHLEMAN ET AL., APPELLEES, v. HASCHENBURGER COMPANY, APPELLANT

254 N.W. 899

127 Neb. 207

DUANE AESCHLEMAN ET AL., APPELLEES, v. HASCHENBURGER COMPANY, APPELLANT

No. 28977

Supreme Court of Nebraska

May 22, 1934

APPEAL from the district court for Lancaster county: ELLWOOD B CHAPPELL, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Ordinarily a presumption, such as the presumption of natural death, has no weight as evidence. It is merely a legal excuse for not offering evidence. If met with evidence of probative force, it ceases to be a factor in the case.

2. The burden of proof is on the one asserting death due to other than natural causes to establish such fact by a preponderance of the evidence.

3. Accidental death, in a compensation case, need not be established to a certainty, but only to a reasonable certainty.

4. Facts and circumstances analyzed in opinion held to constitute salesman selling on commission an employee, and not an independent contractor.

5. Evidence examined and held, death due to accident for which recovery under Employers' Liability Act (Comp. St. 1929, § 48-101 et seq.) proper.

Appeal from District Court, Lancaster County; Chappell, Judge.

Proceedings under the Workmen's Compensation Act by Duane Aeschleman and others, by Ruth M. Aeschleman Braasch, as their mother, natural guardian, and next friend, and as widow of E. J. Aeschleman, deceased, to recover compensation for the death of E. J. Aeschleman, opposed by the Haschenburger Company, employer. From an adverse decree of the district court, on appeal from the compensation commissioner, the employer appeals.

Affirmed.

Rosewater, Mecham, Burton, Hasselquist & Chew and Loren H. Laughlin, for appellant.

Reed, Ramacciotti & Robinson and Roman L. Hruska, contra.

Heard before ROSE and PAINE, JJ., and LIGHTNER, REDICK and THOMSEN, District Judges.

OPINION

THOMSEN, District Judge.

This is an action brought under the compensation law of the state of Nebraska to recover for the death of E. J. Aeschleman. The latter was employed as a traveling salesman for the Haschenburger Company, defendant.

At about 2 p. m. on February 23, 1932, Aeschleman was found beside his car on the road several miles from the town of Heartwell. Two men (later, witnesses) were traveling in a car westward on this road, when they noticed a two-seated Ford on the ridge off the right-hand side of the road. A ditch, about five feet below the surface of the road, separated the ridge from the road. The ditch was about half full of snow. The Ford was headed westward, straddling the ridge, and leaning sharply in the direction of the ditch. The car was a two-door one. The left door of the car was open, the door window was down, Aeschleman's body was lying on the snow almost at right-angle with the car, his head pointing toward the road, his arms extended; one foot was caught between the brake and clutch pedal, the other leg was doubled under him; a small metal tank, weighing about 35 to 40 pounds, was lying in the snow near the rear left wheel "but a little farther back;" a lever handle, part of the tank, was broken off and lying nearby. The snow did not indicate that the body had been dragged.

Later, an inspection of the car and the marks leading to it was made. The radius rod was found to be either broken or bent, and the right front wheel bent around to an angle of about 90 degrees. The front right fender had a nick on it and some cement paint, and part of its paint was scratched off. About 70 feet to the rear on the highway, a concrete post over a concrete culvert had a nick on it the height of the fender with some of the paint of this car on the nick. Following the wheel marks leading from this cement post to the east were skid marks for about 30 "steps," indicating a motion backward and forward from the soft part of the road to the hard surface; shortly beyond the post to the west the wheel marks became indistinct, disappeared for six paces, but were picked up again near where the ditch began, and ran through the ditch up onto the ridge for about 40 feet to the car.

The day was clear and bright, but the road was slippery and soft along its sides, the hard gravel portion in the center, about eight feet wide, being described as "slick," "rough" and "wash-boardy." Some ice and snow had accumulated near the right-hand culvert and made a rise up to a level of the culvert apron, and the wheel marks indicated that the right wheels of the car had gone over this rise.

Some indication of the limit of a safe and cautious speed on that road that day is shown by the speed of the witnesses' car--30 to 35 miles an hour. All of the indications are that Aeschleman's car must have been going at a higher rate of speed. Aeschleman's car could not be pulled out by a wrecker; the road maintainer was required to remove it. Aeschleman's car passed about 70 feet beyond where it is evident it had struck the post, passed through the five-foot ditch and for 40 feet onto the ridge, coming to an abrupt stop with a broken or bent radius rod and twisted wheel. The front seats were thrown forward and the ignition was on. Great power was required to have driven the car to the position in which it ultimately rested, and it is reasonably certain that this power was accomplished by the momentum which the car had gained from previous speed. Where the wheel was so severely bent out of line or the radius rod was bent or broken is not known, but the evidence does not show in the wheel marks that any wheel was out of line. So it is reasonable to infer that the mechanical defects arose in the latter part of the trip, and that these defects stopped the car's flight, and the indications are with reasonable certainty that the ride after the car struck the ditch was one of violence.

The witnesses picked Aeschleman up and carried him to a nearby town. He was breathing hard when picked up, was unconscious, never regained consciousness or said anything, and died within about 10 minutes from the time that he was taken into the car and before the witnesses reached a doctor's office. Both witnesses had been deputy state sheriffs, and one of them was then engaged in the prohibition service. Before Aeschleman died, this witness took the precaution to smell his breath and found no odor on it.

About five hours after Aeschleman's death Dr. Guildner made a casual examination of the body. Aeschleman never wore a hat. Dr. Guildner found a lump on the top of the head extending over a diameter of two and a half to three inches, in the midline from ear to ear. After the embalming, this lump practically disappeared, and this doctor, who was requested to make a post mortem by the compensation insurance carrier, regarded the lump of such slight significance then that he did not mention it in his report. The post mortem was conducted about 30 hours after Aeschleman's death and revealed macroscopically no physical imperfections of any kind. The stomach, heart and brain were removed and the stomach was immediately sent for a test for poisons to the University Hospital at Omaha. Dr. Guildner found no evidence of poisons, but he wanted to exclude every possibility. The brain was sectioned at the post mortem, but was not sent to the University Hospital until a month later. The heart accompanied the brain. These were preserved by being immersed in formalin, but the evidence does not show when the formalin was applied. However, the record does show that the body had been embalmed, but fails to show that the embalming fluid would not adequately preserve the brain substance so as to furnish satisfactory material for a microscopic examination. In the condition it arrived, however, it was not satisfactory for gross examination.

Getting back to the scene of the accident, the inside of the car showed new tears and indented cuts on the upholstering and frame near the door at about the height of a man's head. There is no evidence that any of the windows were open except the one in the left door. The metal tank found at the car was a pressure sterilizer which at the request of his employer Aeschleman had picked up at a Hastings hospital. A metal stand or frame, about three feet high, a part of the sterilizer, was in the car leaning against the front seats. The sterilizer, about two feet long and one foot in diameter, was made of metal. It had a large dent in the center. Snow was on the ground in the ditch beside the left side of the car. There is no evidence that the sterilizer, which was cylindrical, had rolled. It is reasonably certain that there is no way the sterilizer could have left the car except through the driver's window; that it got out of the car before the car came to rest is clear from what is presented. The body of Aeschleman was not dragged, so it is reasonably certain that he fell or was thrown out of the car when the car stopped; that the sterilizer left the car while Aeschleman was still in it. There is no way that it could have left the car through the driver's window without coming in contact with Aeschleman. Its weight was 35 or 40 pounds. No matter what position the sterilizer had occupied in the car, when it was set in sufficient motion to leave the car, its momentum, as a scientific fact would be sufficient to deal a violent blow. The fact that the heavy metal handle of the sterilizer apparently had broken enroute is some indication of its force. The place where Aeschleman's bump occurred is about even with the cut upholstering on the car inside; it is also at a place where it is highly probable and almost certain the tank must have made its departure. We cannot conceive of another place available for its exit. If the tank hit his head a violent blow, it is apparent that the force exerted could have been sufficient to have caused a fatal injury.

That Aeschleman was...