Bergantzel v. Union Transfer Company
| Decision Date | 09 December 1932 |
| Docket Number | 28515 |
| Citation | 245 N.W. 593,124 Neb. 200 |
| Parties | MARION F. BERGANTZEL, APPELLANT, v. UNION TRANSFER COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A compensable injury, under the Workmen's Compensation Act must be reasonably incident to the employment, and unless there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, such injury does not arise out of the employment.
2. Where an employee, of his own volition, to accomplish a private purpose, wholly unconnected with the master's business, chooses to go to a dangerous place, where his employment does not necessarily carry him, and there incurs dangers of his own choosing, the resulting injury suffered by him, and thus caused, does not arise out of, or in the course of, his employment.
3. Evidence examined, and held to sustain the conclusions of the district court.
Appeal from District Court, Douglas County; W. G. Hastings, Judge.
Proceedings under the Workmen's Compensation Act by Marion F. Bergantzel for the death of her husband, an employee, opposed by the Union Transfer Company, employer. From a judgment of the district court, on appeal from the compensation commissioner denying compensation, the claimant appeals.
Affirmed.
Gray & Brumbaugh, for appellant.
Swarr, May & Royce, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is an appeal from the order of the district court for Douglas county denying plaintiff's claim for compensation under the workmen's compensation law, based upon the death of her husband. The trial court determined from the evidence "that the accident by which claimant's (plaintiff's) husband lost his life did not arise out of, or in the course of, his employment by the defendant company, but from an independent cause which (employment) * * * had no causal relation to his death." The record discloses conflicting evidence as to the essential facts of the transaction in which deceased lost his life. This class of cases this court on appeal now hear de novo. Comp. St. 1929, sec. 48-137. "Yet, when the testimony of the witnesses upon the vital question involved is conflicting, this court will, while trying the case de novo, consider the fact that the trial court observed the witnesses and their manner of testifying and must have accepted one version of the facts rather than the other." Southern Surety Co. v. Parmely, 121 Neb. 146, 236 N.W. 178. See, also, Jones v. Dooley, 107 Neb. 162, 185 N.W. 307.
It appears without question that in the late afternoon of June 27, 1931, four truck drivers in the employ of the defendant, Union Transfer Company, viz., Price, Schnabel, Stinson and Bergantzel, were in Sioux City. Bergantzel and Stinson had completed their work at this place and were ready to start with their trucks on the return trip to Omaha. Price's truck had a cargo of wool on board which the course of business rendered necessary to transfer to the Schnabel truck. It seems, without a definite order, by common consent, for the purpose of securing a cooler place to perform this work, these four men in the trucks operated by Price, Schnabel and Stinson, respectively, left the warehouse and dock of their employer, and drove to a certain point on the banks of the Missouri river, in the vicinity of Sioux City, Iowa, which rendezvous is south of and adjacent to a paved highway there extending in a general east and west direction. On their arrival at the appointed spot the Price and Schnabel trucks were placed end to end, south of and parallel to the paved road, and the transfer of the wool from the Price truck to the Schnabel truck was commenced by the persons last named aided by Bergantzel. Situated some fifty feet east of where the two trucks were thus parked, and somewhat farther south from the paved highway at this point, was what the witnesses refer to as the "shack" of one Iverson, who was engaged in selling minnows for fish bait.
The other truckers preceded Stinson to this scene. When he arrived he parked his truck south of the paved highway and some fifty or sixty feet east of the "shack." Instead of joining the three truckers, who had preceded him, in the work of transferring the cargo of wool, Stinson met Iverson and learned that a dice game was in progress in the "shack." He then abandoned, at least temporarily, the work of his employer, accompanied Iverson to the "shack" and engaged in the gambling there being carried on. After a time a quarrel over the result of a certain bet made by Stinson arose between the latter and Iverson. It developed into a fight between these two, during which Stinson received a cut on his wrist from a spade in the hands of Iverson.
Up to this point there is no substantial dispute in the evidence. Iverson testifies that, after Stinson received the cut on the wrist, Stinson called to the other three truck drivers, then at work on the two trucks. These men thereupon suspended work and all came over to the vicinity of the "shack." Stinson spoke to them, and one of the three last arriving said, "Let's get him." Then together they made a concentrated movement against Iverson in aid of Stinson. Iverson, backing up, kept off his pursuers by swinging a spade, until one of his friends, a boy staying with him in the shack, handed him his revolver. Then, when the four continued to follow him, Iverson testifies: "I had to pull the gun and had to hold it on them until I got away from there." The evidence as to Iverson's actual movements is in agreement that the trouble started south of the "shack," and that he was chased around the east, north, west and south sides of the structure and finally made his escape, through some trees situated south and east of the "shack," to and along the paved highway leading eastward. Iverson's testimony is further to the effect that, as he had made good his escape, "Stinson said he would wait until I come back if he had to stay all night."
The testimony of Price and Schnabel is, in effect, a denial of participation in the fight first occurring; that they together with Bergantzel, came over towards the "shack" when Stinson called to them; that they heard no threats uttered by either one of these three, and did not see any of the three physically engage in the assault on Iverson. They admit that on their arrival Stinson renewed the assault on Iverson; that the three were at all times in a relatively close proximity to the fight and in a general way conformed their movements to the movements of the principal actors therein. However, it is quite apparent from their testimony that the assault on Iverson was renewed by Stinson contemporaneous with their arrival in the near vicinity of the "shack;" that they made no effort nor exerted any influence to prevent it; that no one examined Stinson's wound, and...
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