Duncan v. Weidman
| Decision Date | 29 October 1943 |
| Docket Number | 31688. |
| Citation | 11 N.W.2d 537,143 Neb. 864 |
| Parties | DUNCAN v. WEIDMAN. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. 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.
2. The burden placed on plaintiff under the workmen's compensation law is not met by surmise or conjecture, nor can it be based upon mere guess, speculation, or possibility, but must be established by sufficient legal evidence leading to the direct conclusion, or a legal inference, that an accidental injury occurred which caused the disability.
Frederick J. Patz, of Lincoln, for appellant.
Cline Williams & Wright, of Lincoln, for appellee.
Before SIMMONS, C. J., and PAINE, CARTER, CHAPPELL, and WENKE, JJ and NUSS, District Judge.
This is an appeal in a workmen's compensation case from a trial de novo in the district court, in which an award of compensation had been set aside and the petition dismissed.
The deceased Orville Duncan, was employed as a battery man by the defendant, and plaintiff claims that he came to his death while on duty and in the course of his employment at the defendant's place of business. His widow, as plaintiff and appellant, brings her appeal to this court. Defendant denies that the deceased had had any accident or injury while on the job.
Plaintiff testified that they lived at 2028 Q street; that they had no children; that her husband was receiving $18 a week at the time of his death; that the deceased had been working as battery man for Super-Service, but went to work for the defendant company January 1, 1940; that he worked until the 6th, and that on Sunday, January 7, Dr. Reed was called to see the deceased, and told him that he had a bad heart condition; that he remained at home a week or two and then went back to work. She testified that during the time he was home the manager came out to see him, and she told him what the doctor had said about his weak heart, and the manager said that he would put him on easier work, but that they needed him back at work very badly.
Elmer Woodley testified that he was a fellow employee of deceased in the defendant company; that he and the deceased had both been working for the P. R. Robinson Super-Service Station, and that on January 1, 1940, they both began working for the defendant company when it bought out the Super-Service and moved the stock and equipment to a new location about a block away; that while the deceased was employed as a battery man he worked, as did the rest of them, in moving the stock over to the new place. He testified that it snowed that first week in January, and that the employees always kept the snow scooped off the sidewalk. He knew that the deceased worked from January 1 to January 6 and then did not return to work until the middle of one week, and that he died on Monday of the following week. He said the deceased was supposed to come to work at 7 o'clock, go to the post office, get the mail, clean up the place, sweep out the service room and service floor, and usually on Monday morning orders would come in by mail that had to be filled. The witness said he came to work at 8 o'clock, and that this Monday morning they finished loading and checking out the truck for Mr. Burns, the salesman, so he could leave town. They put a load of tires on his truck, and three to five batteries. He said the batteries weigh about 35 pounds each; that the deceased put some of the batteries on the truck.
Witness Woodley had worked at the Super-Service Station with the deceased for about four years, and said it was quite generally known that the deceased had a heart ailment, and it was the practice of the other employees to help the deceased as much as he would let them in doing the heavier parts of his work, to relieve him of the strain because of his heart ailment. He had also gone on hunting trips with the deceased, where they had walked long distances. He testified that the deceased collapsed between 8:30 and 9 o'clock on the morning of January 22, the witness catching him in his arms before he hit the floor; that the last thing he had done just before that was to drive the store service truck in from the street; that deceased did not say anything to any one at the time he collapsed, or after; that they immediately called the fire department and had the pulmotor squad and the doctor.
On cross-examination witness Woodley testified that the deceased went out in the street, got in the pickup truck and drove it into the place of business, got out of the truck, walked about 30 feet, looked like he was reaching for something, and started to say something; that he broke out into a sweat, and he saw him going down and grabbed him.
Dr. E. Burkett Reed testified that he was first called to attend the deceased in August, 1937, for a pain in the chest, and treated him until September 27, 1937, and he was then able to carry on; that he next saw him at his home on January 7, 1940, suffering from a deep chest pain, the deep-pressure type of pain, and complained of having done some extra work at his place of business. Because of his past history of angina and two recoveries, he started giving him the same medicine as before, and told him to remain real quiet for the next several days. He testified on cross-examination that the cause of death was coronary thrombosis. He said that such an attack may occur when a man is sitting in a chair, or when he gets up and starts to stir around, but it may come at any time, no matter what a man is doing. He believed that extra exertion might hasten the process.
The death certificate, attached as defendant's exhibit No. 1, signed by Dr. E. Burkett Reed, shows that the deceased was over 51 years of age, that he died of coronary occlusion, that there were no contributing causes, and after the words "manner of injury" he had filled in the word "none." Q. 24. "Was disease or injury in any way related to occupation of deceased?" A. "No."
Art Dammann testified by deposition taken at Buckhorn Mineral Wells Arizona. He sold out his business to the defendant company, which also bought the Super-Service Station at the same time. He testified that he had also managed the Super-Service Station, and that he never knew of the deceased sustaining any strain or injury while he worked there. He testified that deceased was not a robust man, nor in particularly poor health; that he had charge of the battery room. He never knew that deceased was suffering from any heart trouble...
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