Knaggs v. City of Lexington
| Decision Date | 04 November 1960 |
| Docket Number | No. 34859,34859 |
| Citation | 105 N.W.2d 727,171 Neb. 135 |
| Parties | James KNAGGS, Appellee, v. CITY OF LEXINGTON, Nebraska, a municipal corporation, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. On appeal to this court in a workmen's compensation case the cause is considered de novo upon the record before us.
2. However, where the evidence is conflicting and cannot be reconciled, this court will consider the fact that the district court that tried the cause de novo and observed the demeanor of witnesses gave credence to the testimony of some rather than to the contradictory testimony of others.
3. A claimant must prove, in order to recover under the Nebraska Workmen's Compensation Act, that an accident occurred arising out of and in the course of employment which accident produced injury that resulted in disability or death.
4. In other words, there must be a causal connection between an accident suffered by the claimant and the cause of his disability.
5. In the determination of the question of causation, the disability or death for which compensation is claimed may just as legitimately be attributed to the accidental injury where undeveloped and latent physical conditions are set in motion and accelerated so as to produce such final result as where the same result follows directly from visible violence done to the physical structure of the body.
6. The acceleration, aggravation, or lighting up of a preexisting disease by an injury may constitute disability of a character such as to come within the meaning of the workmen's compensation act.
7. Where an employee, while engaged in the work of his employment, aggravates or accelerates the condition of diseased blood vessels, thereby causing death or disability, it may constitute an injury of a character such as to come within the meaning of the workmen's compensation act.
8. An accident, within the meaning of the statute, shall be construed to mean an unexpected or unforeseen event happening suddenly and violently with or without human fault and producing at the time objective symptoms of injury.
9. Symptoms of pain and anguish, such as weakness, pallor, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by our statute.
10. Mere exertion that would not by itself produce compensable disability, and which is not greater in extent than that ordinarily incident to an employment, but which combines with a preexisting disease to produce a disability, is not an injury caused by accident that becomes such a part of the proximate cause of such disability as to be compensable under the provisions of the workmen's compensation act.
11. In considering the sufficiency of the proof it should be remembered the rule of liberal construction, as it relates to the workmen's compensation act, applies to the law and not to the evidence offered to support a claim by virtue of the law. The rule does not dispense with the necessity that claimant prove his right to compensation; that is, it does not permit a court to award compensation when the required proof is lacking.
12. For workmen's compensation purposes 'total disability' does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or a work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.
Stewart & Stewart, Lexington, for appellant.
Smith Brothers, Lexington, for appellee.
Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
This is an appeal from the district court for Dawson County. It involves a claim arising under the Nebraska Workmen's Compensation Act, R.R.S.1943, § 48-101 et seq., which was originally filed by James Knaggs in the Nebraska Workmen's Compensation Court. The district court, on appeal by the City of Lexington, found that James Knaggs, claimant, was totally and permanently disabled by reason of a heart attack caused by an accident arising out of and in the course of his employment with the City of Lexington and, because thereof, ordered the city to pay claimant the sum of $33.84 per week for 300 weeks and thereafter the sum of $22.84 per week for the remainder of his life. It also ordered the city to pay certain medical, hospital, drug, and nursing bills, together with other expenses had by claimant in connection with his condition following the accident, all of which amounted to the sum of $1,967.02.
The City of Lexington filed a motion for new trial. This motion the trial court overruled except as to the items of hospital and medical expenses. As to these it granted a new trial for the purpose of redetermining the amount thereof. From this order the city took an appeal to this court. On appeal to this court in a workmen's compensation case the cause is considered de novo upon the record before us. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51; Gotfrey v. Sakurada, 169 Neb. 879, 101 N.W.2d 470. However, '* * * where the evidence is conflicting and cannot be reconciled, this court will consider the fact that the district court that tried the cause de novo and observed the demeanor of witnesses gave credence to the testimony of some rather than to the contradictory testimony of others.' Dietz v. State, 157 Neb. 324, 59 N.W.2d 587.
Appellant states the question involved in this appeal as: 'Did the appellee suffer an injury to his person which was the proximate result of an accident within the meaning of the Nebraska Workmen's Compensation Act?' In this respect appellee has the burden of proof. See, Anderson v. Cowger, supra; Chiles v. Cudahy Packing Co., 158 Neb. 713, 64 N.W.2d 459; Jones v. Yankee Hill Brick Manuf. Co., 161 Neb. 404, 73 N.W.2d 394. He must prove, in order to recover, '* * * that an accident occurred arising out of and in the course of employment which accident produced injury that resulted in disability or death.' Anderson v. Cowger, supra [158 Neb. 772, 65 N.W.2d 56]. See, also, Jones v. Yankee Hill Brick Manuf. Co., supra; Gotfrey v. Sakurada, supra. And, as we have often said in this respect, a compensation award cannot be based on possibilities or probabilities. See, Pixa v. Grainger Bros. Co., 143 Neb. 922, 12 N.W.2d 74; Chiles v. Cudahy Packing Co., supra; Anderson v. Cowger, supra; Gotfrey v. Sakurada, supra.
There must be a causal connection between an accident suffered by the claimant and the cause of his disability. Anderson v. Cowger, supra; Pixa v. Grainger Bros. Co., supra; McCauley v. Harris, 164 Neb. 216, 82 N.W.2d 30. In Schirmer v. Cedar County Farmers Telephone Co., 139 Neb. 182, 296 N.W. 875, 878, we discussed the latter, as it relates to the situation here presented, in the following language: "In the determination of the question of causation, the disability or death for which compensation is claimed may just as legitimately be attributed to the accidental injury where undeveloped and latent physical conditions are set in motion and accelerated so as to produce such final result as where the same result follows directly from visible violence done to the physical structure of the body.' 71 C.J. 605. 'The acceleration, aggravation, or lighting up of a preexisting disease by an injury may constitute disability of a character such as to come within the meaning of workmen's compensation acts.' 71 C.J. 608. 'Where an employee, while engaged in the work of his employment, aggravates or accelerates the condition of diseased blood vessels, thereby causing death or disability, it may constitute an injury of a character such as to come within the meaning of workmen's compensation acts.' 71 C.J. 610. 'The acceleration or aggravation of an employee's heart condition thereby causing death or other disability may constitute physical harm of such a character as to come within the meaning of workmen's compensation acts.' 71 C.J. 611.'
Anderson v. Cowger, supra. See, also, Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31; Jones v. Yankee Hill Brick Manuf. Co., supra; Tucker v. Paxton & Gallagher Co., 153 Neb. 1, 43 N.W.2d 522.
'Mere exertion that would not by itself produce compensable disability, and which is not greater in extent than that ordinarily incident to an employment, but which combines with a pre-existing disease to produce a disability, is not an injury caused by accident that becomes such a part of the proximate cause of such disability as to be compensable under the provisions of the Workmen's Compensation Act.' Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714. See, also, Rose v. City of Fairmont, 140 Neb. 550, 300 N.W. 574; Brown v. City of Omaha, 141 Neb. 587, 4 N.W.2d 564; Anderson v. Cowger, supra; Jones v. Yankee Hill Brick Manuf. Co., supra; Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379; Eschenbrenner v. Employers Mutual Casualty Co., 165 Neb. 32, 84 N.W.2d 169.
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