Burkholder v. Clark

• Citation: 300 N.W. 839,140 Neb. 590
• Decision Date: 21 November 1941
• Docket Number: 31303
• Parties: EDGAR BURKHOLDER, APPELLANT, v. KATIE E. CLARK, EXECUTRIX, APPELLEE
• Court: Supreme Court of Nebraska

300 N.W. 839

140 Neb. 590

EDGAR BURKHOLDER, APPELLANT, v. KATIE E. CLARK, EXECUTRIX, APPELLEE

No. 31303

Supreme Court of Nebraska

November 21, 1941

APPEAL from the district court for Gage county: CLOYDE B. ELLIS JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The burden of proof is on the employee to prove by a preponderance of the evidence that his claim comes within the provisions of the Workmen's Compensation Act, as is required by law.

2. Evidence examined and held insufficient to show that the injury sustained by plaintiff occurred in the regular trade, business, profession or vocation of his employer within the meaning of section 48-106, Comp.St.1929.

Appeal from District Court, Gage County; Ellis, Judge.

Proceeding under the Workmen's Compensation Act by Edgar Burkholder, compensation claimant, opposed by Katie E. Clark, executrix of the estate of Everett L. Call, deceased. The workmen's compensation court found for the claimant and awarded compensation for total disability, and Katie E. Clark, executrix of the estate of Everett L. Call, deceased, appealed to the district court. From a judgment of the district court setting aside the award of the workmen's compensation court, the claimant appeals.

Judgment affirmed.

A compensation claimant has the burden of proving by a preponderance of the evidence that his compensation claim comes within the provisions of the Workmen's Compensation Law.

Hubka & Hubka, for appellant.

Sackett, Brewster & Sackett, contra.

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

OPINION

MESSMORE, J.

This is a compensation case. The Nebraska workmen's compensation court found for the plaintiff and awarded compensation for total permanent disability. From this award defendant appealed to the district court, which found for the defendant, setting aside the award of the compensation court and dismissing plaintiff's cause of action. Plaintiff appeals, contending the district court was in error in that its finding and judgment were contrary to the evidence and the law.

The evidence discloses that the plaintiff, a painter and paper hanger, had worked on several occasions for one E. L. Call, now deceased, who owned about 12 pieces of rental property in the city of Beatrice, Nebraska. In addition, he owned several lots, upon which were situated a large barn and the residence of Call. The plaintiff was finishing the painting of this barn when he fell and severely injured himself, resulting in permanent disability.

The contention of the plaintiff is that the injury sustained by him occurred in the regular trade, business, profession or vocation of his employer, Call. Comp. St. 1929, sec. 48-106. This...