Carranza v. Payne-Larson Furniture Co.

• Decision Date: 01 November 1957
• Docket Number: PAYNE-LARSON,No. 34248,34248
• Citation: 85 N.W.2d 694,165 Neb. 352
• Parties: Jose CARRANZA, Appellee, v.FURNITURE COMPANY, a co-partnership and Glens Falls Insurance Company, Appellants.
• Court: Nebraska Supreme Court

Page 694

85 N.W.2d 694

165 Neb. 352

Jose CARRANZA, Appellee, v. PAYNE-LARSON FURNITURE COMPANY, a co-partnership and Glens Falls Insurance Company, Appellants.

No. 34248.

Supreme Court of Nebraska.

Nov. 1, 1957.

Syllabus by the Court

The rules of law which are applicable and controlling in this case appear in Sporcic v. Swift & Co., 149 Neb. 246, 30 N.W.2d 891, Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379, and Gohlinghorst v. Ruess, 146 Neb. 470, 20 N.W.2d 381.

Blackledge & Sidner, Kearney, for appellants.

Dryden & Jensen, Kearney, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

This is a workmen's compensation case. Plaintiff, Jose Carranza, in his petition filed in the Nebraska Workmen's Compensation Court, alleged that defendant, Payne-Larson Furniture Company, hereinafter called defendant, was a partnership composed of Alvie Payne and James Larson, with its principal place of business in Kearney, and that defendant Glens Falls Insurance Company was its compensation insurer. Plaintiff also alleged therein that on a specified date, 'while engaged in the course of his employment and in the warehouse of the defendant * * * while attempting to lift a Certa (Serta) bed, he injured his back, causing a rupture of the intervetetral (intervertebral) disc in said back,' which caused him to be totally disabled for a stated period of time and thereafter suffer a 10 percent permanent partial disability. He also alleged 'that as a direct and proximate result of the injury sustained by him as a result of attempting to lift said Certa (Serta) Bed as aforesaid, he incurred' certain medical, surgical, and hospital bills.

After a hearing before one judge of the workmen's compensation court, judgment was rendered on January 18, 1956. Thereafter, on January 20, 1956, plaintiff filed in the workmen's compensation court a waiver of rehearing and a notice of intention to appeal directly to the district court for Buffalo County, all of which is shown by a certificate of the workmen's compensation court filed in the district court on January 23, 1956. Also on that date, plaintiff filed his petition for trial de novo in the district court, reciting that he has waived rehearing before the workmen's compensation court and elected to appeal directly to the district court. Therein he alleged that he was employed by defendant as a common laborer and: 'That on about the 18th day of August, 1955, while engaged in the course of his employment and in the warehouse of the defendant * * * while attempting to lift a Certa (Serta) bed, being approximately 250 pounds, the same wobbled as he was lifting his end of the same, causing a rupture of the intervertebral disc in his back' which resulted in total disability for a stated period of time, and thereafter a 10 percent permanent partial disability. He also alleged: '* * * that as a direct and proximate result of the injuries sustained by him in attempting to lift said Certa (Serta) bed as aforesaid,' he incurred certain medical, surgical, and hospital bills.

So far as important here, the answer of defendants was a general denial and a specific denial that plaintiff sustained any injury from an accident arising out of and in the course of his employment by defendant, and a specific denial that either of the defendants was under any obligation to pay for any claim made by plaintiff.

After a trial on the merits in the district court, a decree was rendered, finding that: '* * * plaintiff sustained an accidental injury on or about the 18th day of August, 1955, while in the course of his employment for the defendant * * *. That said injury was sustained, while he was lifting a certa (Serta) bed weighing approximately 250 pounds. That as said bed was lifted, it wobbled and plaintiff slipped and the bed fell partially out of his hand and while attempting to grab it, he sustained an extruded intervertebral disk (disc) in his back. The court further finds that the aforesaid plaintiff was temporarily totally disabled from the 22nd day of August, 1955 up to and including the 20th day of February 1956. That thereafter he was 10% permanently partially disabled.' At this point, it should be said that there was no competent evidence whatever which could sustain a finding that 'plaintiff slipped.'

Judgment was rendered in accord with the aforesaid findings, and defendants' motion for new trial was overruled. Therefrom they appealed to this court, assigning error as follows: (1) That plaintiff in his appeal to the district court failed to make a record sufficient to support a judgment because he failed to plead or prove any previous judgment of the workmen's compensation court; and (2) that the evidence was not sufficient to support a finding that plaintiff's alleged injuries and disability were caused by an accident arising out of and in the course of his employment. We conclude that assignment (1) has no merit, but that assignment (2) should be sustained.

We turn first to assignment (1). In that connection, section 48-181, R.R.S.1943, provides in part: 'In any such case, any party thereto may serve notice upon and waive rehearing before the Nebraska Workmen's Compensation Court. In such case any appeal shall be directly to the district court of the county in which the accident occurred; * * *. Such appeal to the district court shall be taken and perfected in the same manner as provided for appeals to the compensation court. In such cases the trial in the district court shall be a trial de novo.' (Italics supplied.) With relation to that section, we said in Sporcic v. Swift & Co., 149 Neb. 246, 30 N.W.2d 891, 893: 'The defendant argues that plaintiff's petition in the instant case failed to have attached to it the pleadings and orders of the Workmen's Compensation Court as required by law, citing Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N.W. 352, to the effect that the petition on appeal in the cited case, from the compensation court, included a copy of the pleadings before the Workmen's Compensation Court, setting forth the issues, and also the order of dismissal of the Workmen's Compensation Court. * * *

'In the cited case, followed by Bell v. Denton, 136 Neb. 23, 284 N.W. 751, there was no specific requirement that the pleadings, orders and findings of the Workmen's Compensation Court be attached to the petition on appeal. Section 48-181, R.S.Supp., 1945, which provides for direct appeal when rehearing is waived before the Nebraska Workmen's Compensation Court to the district court, makes no such requirement that such pleadings, orders or findings be attached to the petition on appeal to perfect such appeal where the petition sets out the errors of the compensation court and alleges that rehearing was waived and notice of appeal given in due time.' That statement is controlling here and disposes of defendants' first contention.

In dealing with assignment (2), we turn to Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379, wherein we held: 'An appeal to this court in a workmen's compensation case is considered and determined de novo upon the record.

'A compensable injury within the Workmen's Compensation Act is one caused by an accident arising out of and in the course of the employment.

'An accident within the Workmen's Compensation Act is an unexpected and unforeseen event happening suddenly and violently and producing at the time objective symptoms of injury.

'In order to recover, the burden of proof is upon the claimant in a compensation case to establish by a preponderance of the evidence that personal injury was sustained by the employee by an accident arising out of and in the course of his employment.

'Mere exertion, which is no greater than that ordinarily incident to the employment, cannot of itself constitute an accident, and if combined with preexisting disease such exertion produces disability, it does not constitute a compensable accidental injury.

'An award of compensation under the Workmen's Compensation Act may not be based on possibilities, probabilities, or speculative evidence.

'The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim by virtue of the law. The rule does not dispense with the necessity that claimant shall prove his right to compensation within the rules above set forth nor does it permit a court to award compensation where the requisite proof is lacking.' See, also, Haufe v. American Smelting & Refining Co., 163 Neb. 329, 79 N.W.2d 570; Jones v. Yankee Hill Brick Manuf. Co., 161 Neb. 404, 73 N.W.2d 394.

Such rules are controlling here on the merits, and we summarize the material and relevant evidence in the light thereof. Also, in doing so, we are not unmindful that Jones v. Yankee Hill Brick Manuf. Co., supra, was decided by this court on December 9, 1955, and that in the district court, after filing his petition in the compensation court and testifying therein, plaintiff materially changed his theory of recovery, as shown by his petition on appeal, and his testimony with regard thereto in the compensation court and the district court, in order to meet the exigencies of the pending action. That conduct makes applicable Gohlinghorst v. Ruess, 146 Neb. 470, 20 N.W.2d 381, wherein we held: 'Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded.

'A trial court is not required to helplessly sit by and permit a litigant to toy with the processes of the court by insisting under oath at different times on the truth of each of two contradictory stories according to the exigencies of the particular occasion...