Fite v. Ammco Tools, Inc.

• Citation: 258 N.W.2d 922,199 Neb. 353
• Decision Date: 02 November 1977
• Docket Number: No. 41160,41160
• Parties: Marilyn L. FITE, widow of Larry I. Fite, Appellant, v. AMMCO TOOLS, INC., Appellee.
• Court: Supreme Court of Nebraska

Page 922

258 N.W.2d 922

199 Neb. 353

Marilyn L. FITE, widow of Larry I. Fite, Appellant, v. AMMCO TOOLS, INC., Appellee.

No. 41160.

Supreme Court of Nebraska.

Nov. 2, 1977.

Syllabus by the Court

1. The Workmen's Compensation Act is one of general interest, not only to the workman and his employer, but as well to the state and it should be so construed that technical refinements of interpretation will not be permitted to defeat it.

2. The purpose of the nonapplicability of the Nebraska Rules of Evidence to the Workmen's Compensation Court was to allow the compensation court to make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of sections 48-101 to 48-190.

3. The Workmen's Compensation Court must permit the introduction of evidence which is admissible in the trial courts of this state.

4. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, and bodily health is not excluded by the hearsay rule.

5. The statement of intent related to the destination and purpose of a journey is admissible only if it is made at or about the time of the act of departure.

6. When the condition of the record and the form of question itself shows that it is relevant and competent, no offer of proof is necessary.

7. The findings of fact made by the Nebraska Workmen's Compensation Court after rehearing shall have the same force and effect as a jury verdict in a civil case. A judgment, order, or award of the Nebraska Workmen's Compensation Court may be modified, reversed, or set aside only upon the grounds that: (1) The court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the court do not support the order or award.

Yost, Schafersman, Lamme & Hillis, Fremont, for appellant.

William M. Lamson, Jr. and John K. Green of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

C. THOMAS WHITE, Justice.

This is an appeal from the Nebraska Workmen's Compensation Court. The court held that plaintiff had failed to maintain the burden of proving by a preponderance of the evidence that her deceased husband Larry I. Fite was in the course of his employment at the time of his death on July 2, 1975. The decedent was killed as the result of a crash of a Cessna airplane near the Greenwood Interchange of Interstate 80 in Nebraska. The plaintiff appeals.

Plaintiff assigns as error the compensation court's refusal to admit into evidence certain statements of the decedent concerning his purpose or intent and which the plaintiff contends would tend to prove that the decedent was within the scope of his employment at the time of his death. The decedent was the district sales manager for the defendant-appellee Ammco Tools, Inc. The defendant corporation manufactures, sells, and services automotive equipment, particularly brake-service equipment. The decedent's territory was Nebraska, South Dakota, and western Iowa. The decedent owned an airplane that he used almost exclusively for business. The defendant was aware of and approved the use of his airplane to make sales and service calls. The plaintiff introduced evidence as to the work patterns of the decedent 2 days prior to the date of his death. No evidence was introduced as to the decedent's movements or work activities on the date of death, from the time he left his home in Fremont until he was seen at the Fremont Airport. The only evidence as to the decedent's activity on the date of death were the three declarations of intent. The court in each of the three instances excluded the evidence as proof of the principal issue: Was the decedent acting within the scope of his employment at the time of his death?

The testimony of the widow Marilyn L. Fite was that the decedent left his home on July 2, 1975, between 8 and 8:30 a. m. "Q- did you have any conversation with him when he left? Just yes or no. A- Yes. Q- And would you tell the Court what your husband said to you before he left home? MR. LAMSON: Your Honor, I'm going to object to that question as calling for a hearsay statement, also a self-serving declaration, * * *. I do not feel that the conversation falls within any accepted exception to the hearsay rule. * * * MR. YOST * * * So, this statement is offered as evidence of a material fact; that is, what the decedent indicated he was going to do, where he was going on that day, and it is more probative on that point than any other evidence * * *. I would conclude only by saying that this is precisely the type of a situation that the new rules are designed to cover, and the testimony is admissible. * * * PRESIDING JUDGE: Well, the objection will be overruled with this explanation and this qualification: That the statement made by the deceased, Larry Fite, will be received as evidence only that such statement was made by him at that time, and not as evidence of the truth of any such statement that he may have made at such time. Q * * * Again, Mrs. Fite, what did your husband say to you as he left home that morning? * * * A- He said he was busy and had to go to Lincoln and Omaha."

The decedent's father Ansel Fite testified that at about 7:30 a.m. on July 2, 1975, he spoke on the telephone with the decedent. "Q- And who called who made the call? You or your son? A- Larry made the call. Q- And with whom did he speak first? A- He spoke to me first. Q- And would you relate that conversation to the Court as best you can, please? MR. LAMSON: Your Honor, I'm going to object to that. It's hearsay. It does not fall within the exception of the hearsay rule. MR. YOST: This is the same argument we've been through before * * *. And we maintain it is admissible for the same reasons previously stated with regard to the testimony of Mrs. Fite. PRESIDING JUDGE: The objection will be overruled with the same limitation, the same qualification as given earlier, namely, that any declaration of the deceased now given will be received as evidence only that such declaration was made and not as to the truth of the declaration. Q- * * * Would you relate that phone conversation, please, Mr. Fite? A- Well, he called me, approximately, at 7:30 in the morning. * * * And he wanted to know how we was. And the conversation, just normally, conversation talking to him. And he says, 'Well,' he says, 'I'm going to have to go.' He didn't talk too long. He says, 'I've got to go to work.' "

Mr. Eldon Nielsen, a friend of the decedent, testified that on July 2, 1975, as he was driving on U.S. Highway No. 30 past the Fremont Airport, he saw the decedent Larry Fite. The decedent was then standing in front of the hangar and waved at the witness. The witness turned around and went back to the hangar where he had a conversation with the decedent. It was between 10:30 and 11 o'clock in the morning. The witness was a serviceman for Amoco Oil Company. The decedent worked for Ammco Tools, Inc., and on occasion the decedent and the witness had worked together demonstrating equipment. The decedent and witness had flown together in the decedent's airplane on a prior occasion for a business trip to Wisconsin to work on front end and brake machines. The conversation generally related to the decedent's request that the witness fly with him. The question was asked: "Q- My next question, Mr. Nielsen, won't call for yes or no answer. You were asked whether or not there had been any indication given to you about whether the trip was business or pleasure. And you started to give your answer and to explain it as something more than yes or no terms. I'd ask you to do so now. A- The reason why I started to say that is, he asked me where I was going. And I was going on a service call. And I said, 'I have work to do.' And he says, 'So do I. We will go together some other time.' " In response to a motion to strike, ...