Hamilton v. Huebner
| Decision Date | 06 July 1945 |
| Docket Number | 31939. |
| Citation | 19 N.W.2d 552,146 Neb. 320 |
| Parties | HAMILTON v. HUEBNER et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An award of compensation cannot be sustained if based upon possibilities, probabilities, conjectural or speculative evidence.
2. The value of the opinion of an expert witness is dependent on, and is no stronger than, the facts on which it is predicated. The opinion has no probative force unless the premises upon which it is based are shown to be true.
3. Mere exertion, which is not greater than that ordinarily incident to the employment, which combined with pre-existing disease produces disability, does not constitute a compensable accidental injury.
4. The hearsay rule forbids the use of an assertion, made out of court, as testimony to establish the truth of the fact asserted, unless the circumstances under which the statement was made are such as to justify the waiver of the requirement that it be given under oath and subject to cross-examination.
5. To render such assertions admissible it is required that (1) there be some shock to the feelings sufficient to render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) it must relate to the circumstances causing the shock to the feelings.
6. A declaration, to be a part of the res gestae, need not necessarily be coincident in point of time with the main fact proved. It is enough that the two are so clearly connected that the declaration can, in the ordinary course of affairs be said to be a spontaneous explanation of the real cause.
7. Statements made subsequent to the act may be admissible provided there has not been time for the exciting influence of the shock to lose its sway and be dissipated, or, as stated otherwise, provided the shock extends from the moment of the event to the time the statement is made.
8. It is not enough that the speaker was under the stress of nervous excitement or pain when the statement was made, but it must appear that the speaker was under the stress of nervous excitement and shock produced by the act in issue.
9. The Compensation Act does not put upon the employer the burden of being an insurer of the well-being of his employee.
10. Hardship in a particular case does not warrant an exception to the hearsay rule.
11. 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.
12. The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim. The rule does not permit a court to award compensation where the requisite proof is lacking.
13. The statute requires that this court, where it is found that the findings of fact are not conclusively supported by the evidence as disclosed by the record, consider the cause here de novo upon the record.
Frederick M. Deutsch, of Norfolk, for appellants.
Moyer & Moyer, of Madison, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
Plaintiff here seeks an award of compensation under the Workmen's Compensation Act, R.S.1943, § 48-101 et seq. Her claim was denied by one of the judges of the compensation court. Rehearing was waived. Appeal was taken to and trial had in the district court, where an award was entered granting compensation. Defendants appeal. We reverse the judgment of the district court and dismiss the action.
Plaintiff is the widow of Earl T. Hamilton. The defendants are his employer and the insurance carrier.
Plaintiff filed her petition in the compensation court, alleging the employment of Hamilton, the nature of his employment and his wages. She further alleged that he received injuries arising out of and in the course of his employment; and that he died from the effects of the injuries. She prayed for compensation.
Defendants answered admitting the employment, the wages, and the death of Hamilton, and denying other allegations of the petition.
The matter was heard before one judge of the compensation court who found that the death did not result from an accident arising out of and in the course of the employment, and dismissed the petition. Plaintiff waived a rehearing and elected to appeal directly to the district court. Trial was had in the district court, resulting in a finding generally for the plaintiff. An award of compensation, medical, hospital and burial expense was made. A motion for a new trial was made and denied. Defendants appeal.
Defendants assign as error the following: That the evidence did not support the award and it was contrary thereto; that the court erred in ruling upon, and in the admission of, evidence in several particulars; that the court erred in its findings and that the compensation award was excessive.
In summarizing the evidence, as it appears in the record, we include that which was admitted over objection of the defendants.
Defendant Huebner, hereinafter called the defendant, operated a gasoline filling station, tire and battery shop, and related businesses. He operated trucks for the delivery of petroleum products. His establishment covered about one-fourth of a city block. On this location he had a filling station, an office, a tire and battery shop, and a garage for the storage of vehicles.
Deceased was 45 years of age, and up to the time of the events here involved apparently was in good health. He had worked for defendant for several years. His duties were primarily in the tire and battery shop, changing and repairing car, truck and tractor tires, tubes and batteries. He occasionally worked on the pumps and did other work about the establishment.
On one of defendant's trucks there was a small one to one and one-half horsepower four-cycle engine, similar to those used on some washing machines. This was mounted about four feet above the ground. Its function was to operate the device that measured the product delivered from the truck. The starting apparatus was a pulley, similar to that on an outboard motor, except that the pulley was mounted vertically on the side. The method of starting was also similar to the outboard motor operation. The pulley cord was sashweight cord, from 30 to 36 inches in length, with a wooden handle on one end and a knot on the other. In starting the engine, about two feet of this cord were wrapped about the pulley and then pulled or jerked, the operator standing in front of the engine and pulling with the force away from it. It was not necessary that the person exerting the force assume a cramped or awkward position. The force necessary to turn the engine was much less than that used in cranking a small automobile engine. Normally this engine could be turned over against compression by taking hold of the starting pulley with one hand. Sustained force was not required, i. e., there was the pull, and if the engine did not start, then a rewind of the cord on the pulley and another pull were necessary. The cords became worn in this process and often broke at the frayed places.
Defendant's employee, Sellentine, operated this truck. On the evening of October 18, 1943, the engine had failed to work. Deceased and Sellentine had spent some time late that day attempting to start it, but were unsuccessful. Defendant told Sellentine to take it to a garage the following morning to be fixed.
The truck was located about 125 feet from the filling station. On the morning of October 19, 1943, at about 8:00 o'clock, contrary to that instruction, deceased and Sellentine again attempted to start the engine, but were unsuccessful. They worked at it some minutes taking turns at pulling on the cord. Sellentine then returned to the pump. Some 15 or 20 minutes later deceased came to Sellentine at the station and told him the rope had broken. The two men returned to the truck, Sellentine got a new cord, attached the handle and went back to the station. Some 30 minutes later, or about 9:00 a. m., deceased came again to the station, said he had been unable to start the engine, suggested it be taken to the garage, and remarked that he had a severe pain in his chest. He made no statement of any untoward event or accident. He asked for no assistance. His appearance did not cause alarm to Sellentine, who then left with the truck for the garage.
Apparently a few minutes later, a tire company representative, who was acquainted with deceased, went into the tire shop. This building was about 75 feet from the station. There was nothing unusual about deceased's condition, except he was sitting down during working hours. This caused the representative to ask deceased what was the matter. He replied that he had a severe pain in the chest, and that he had been cranking a motor. It appears that in his testimony before the compensation commissioner, he stated deceased also said that the rope broke. Deceased asked for no help and his condition did not cause the tire representative any concern.
Deceased lived less than a block away across the street. He next appeared at his home sometime between 9:00 and 10.00 a. m. He entered the house, took off his cap and jacket, pounded his chest, remarked to plaintiff that he had a terrible pain in his chest and that it was driving him crazy. He walked the floor, his face was white, and he appeared to be suffering intense pain. Plaintiff called the doctor. Plaintiff on direct examination was asked this question: 'Did you make any inquiry...
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