Bekelski v. O. F. Neal Co.

Citation141 Neb. 657,4 N.W.2d 741
Decision Date26 June 1942
Docket NumberNo. 31360.,31360.
PartiesBEKELSKI v. O. F. NEAL CO.
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

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

Proceeding under the Workmen's Compensation Act by Evelyn Bekelski, compensation claimant, opposed by the O. F. Neal Company. From an award of compensation in favor of the claimant, the O. F. Neal Company appeals.

Reversed, and proceeding dismissed.

Syllabus by the Court.

1. A claim for benefit under the workmen's compensation law for disability resulting from shock and nervousness caused by an accident arising out of and in the course of employment is not sustainable unless accompanied by violence to the physical structure of the body of claimant.

2. The workmen's compensation law should be liberally construed to carry out its beneficent purposes, but under the guise of a liberal construction it should not be extended to cases which by plain language are excluded from its scope.

ROSE, J., dissenting.

Gross & Crawford, of Omaha, for appellant.

Votava & McGroarty and Eugene F. Fitzgerald, all of Omaha, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, CARTER, MESSMORE, and YEAGER, JJ.

CARTER, Justice.

This is an appeal from an award of compensation made in favor of the plaintiff and against the O. F. Neal Company, a corporation, under the Nebraska workmen's compensation law, Comp.St.1929, § 48-101 et seq.

The evidence shows that Evelyn Bekelski, the plaintiff, was employed on August 14, 1940, by the defendant as an elevator operator in the Farm Credit Building in Omaha at a wage of $15 a week. On that day, while plaintiff was operating the elevator, a passenger riding therein was caught between the floor of the elevator and the second floor of the building and killed. The record shows that plaintiff was lodged in the elevator with the dying man for some thirty minutes before the doors were broken in and his body removed. Plaintiff claims that the sight of this terrible accident and her proximity to it when it occurred resulted in an injury to her nervous system which constitutes permanent total disability, entitling her to benefits under the workmen's compensation law.

The record shows that plaintiff suffered shock so great to her nervous system that her recollection was hazy as to what happened, that she was in a state of extreme excitement when she was removed from the elevator and had lost all control of her emotions, that her heart beat was rapid and her blood pressure considerably higher and that it was necessary for her to remain in the hospital for several days thereafter. The evidence shows that she is still under a doctor's care and that further hospitalization is to be desired. Plaintiff suffered no physical injury to her person as a result of the accident, but has suffered pains in the head and back since the accident. The evidence is conclusive that plaintiff is unable to perform the work of an elevator operator, or similar work. We think the record establishes that plaintiff was totally disabled within the meaning of the compensation law when this case was heard.

Defendant contends, however, that plaintiff did not sustain a disabling injury within the meaning of the workmen's compensation law. Our statute defines an accident as follows: “The word ‘accident’ *** shall *** be construed to mean an unexpected or unforeseen event happening suddenly and violently *** and producing at the time objective symptoms of an injury. The term ‘injury’ and ‘personal injuries' shall mean only violence to the physical structure of the body ***.” Comp.St.1929, sec. 48-152.

That there was an unexpected or unforeseen event happening suddenly and violently cannot be successfully questioned. We think the record shows that objective symptoms of injury were present. The evidence conclusively shows that plaintiff was irrational and hysterical after the accident, her blood pressure was considerably higher and her pulse more rapid. Medical experts testified that when examined, the pupils of her eyes were dilated, her posture was abnormal and she had tremors and an inability to walk in her usual manner. These are objective symptoms within the definition of that term as laid down by this court in Manning v. Pomerene, 101 Neb. 127, 162 N.W. 492, 493, wherein we said: Defendant's idea is that by objective symptoms are meant symptoms of an injury which can be seen, or ascertained by touch. We are of opinion that the expression has a wider meaning, and that symptoms of pain and anguish, such as weakness, pallor, faintness, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by the statute.” See, also, Van Vleet v. Public Service Co., 111 Neb. 51, 195 N.W. 467.

In determining whether there was violence to the physical structure of the body, as required by the compensation law, we are confronted with a more perplexing problem. The primary purpose of the workmen's compensation act is to insure an employee against accidental injury arising out of and in the course of his employment. To accomplish this purpose the act should be liberally construed, not to find that liability exists without the required quantum of proof, but to include within the protection of the act by liberal interpretation all injuries arising out of and in the course of the employment which the act does not clearly exclude. A strict interpretation should not be resorted to in order to accomplish such exclusion. With this rule of construction in mind, can it be said that disabling shock and nervousness, when unaccompanied by an impairment of the physical structure of the body, is compensable under our compensation law?

The point here raised does not seem to have been passed on directly by this court. In referring to the decisions of other jurisdictions it must be borne in mind that the compensation laws of the various states...

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15 cases
  • Miller v. Bingham County
    • United States
    • Idaho Supreme Court
    • May 2, 1957
    ...of a coronary artery * * *.' This Court adopted the following reasoning of the dissenting opinion in the case of Bekeleski v. O. F. Neal Co., 141 Neb. 657, 4 N.W.2d 741, 744, as more worthy of 'I am inclined to think that the lawmakers, by the use of the term 'violence to the physical struc......
  • Pathfinder Co. v. Industrial Commission
    • United States
    • Illinois Supreme Court
    • February 5, 1976
    ...in part Danziger v. Employers Mutual Liability Insurance Co., 245 La. 33, 156 So.2d 468 (1963); Nebraska, Bekeleski v. O.F. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942). Holdings affirming awards include: Arizona, State Compensation Fund v. Industrial Com., 24 Ariz.App. 31, 535 P.2d 623 (197......
  • Carter v. General Motors Corp., Chevrolet Gear & Axle Division, 20
    • United States
    • Michigan Supreme Court
    • December 1, 1960
    ...of the body, compensation was denied to an elevator operator for shock occasioned by seeing a passenger killed. Bekeleski v. O. F. Neal Co., 141 Neb. 657, 4 N.W.2d 741. In Texas, however, where an injury is defined as damage or harm to the physical structure of the body, compensation was al......
  • Todd v. Goostree, 25576
    • United States
    • Missouri Court of Appeals
    • January 19, 1973
    ...the 'violence to the physical structure of the body', definition, the court adopted the reasoning of the dissent in Bekeleski v. O. F. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (construing an identical statute) as more scientific and more worthy of acceptance, l.c. '. . . I am inclined to think ......
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