Maul v. Iowa-Nebraska Light & Power Co.
| Decision Date | 19 January 1940 |
| Docket Number | No. 30751.,30751. |
| Citation | 288 N.W. 532,137 Neb. 128 |
| Court | Nebraska Supreme Court |
| Parties | MAUL v. IOWA-NEBRASKA LIGHT & POWER CO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined and held to establish that appellant suffered an injury resulting from an accident arising out of and in the course of his employment.
2. “Injury from strain or overexertion due to a physical condition predisposing the employee to injury is an injury within the terms of the Nebraska workmen's compensation act, even though had the person been sound in every particular the strain would not have been sufficient to occasion any serious physical injury.” Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860.
3. Hearsay evidence tending to prove a material fact, if admitted without objection, may sustain a finding of the existence of that fact. The probative force of such evidence is for the trial tribunal vested with the function of ascertaining facts to determine.
4. “Cogent reasons that strengthen the opinion of an expert witness as to a scientific fact in issue and tend to weaken opposite expert opinions not so supported may determine the issue.” Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925.
Appeal from District Court, Lancaster County; Broady, Judge.
Proceeding under the Workmen's Compensation Act, Comp.St. 1929, § 48-101 et seq., by Peter Maul, claimant, against the Iowa-Nebraska Light & Power Company, employer. From an award of the Nebraska Compensation Board, the employer appealed to the district court. From a judgment of the district court on trial de novo, reversing the award in favor of the claimant and denying claimant recovery claimant appeals.
Judgment of the District Court reversed and cause remanded with directions to enter judgment in favor of claimant.
Chambers, Holland & Locke, of Lincoln, for appellant.
Lee & Sheldahl, of Lincoln, for appellee.
Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.
This proceeding is an appeal to this court by Peter Maul, appellant and plaintiff, to reverse a judgment entered in the district court for Lancaster county on December 3, 1938, in favor of the Iowa-Nebraska Light & Power Company, defendant and appellee herein, and against the appellant, denying his petition for workmen's compensation and dismissing his action.
The claims of Peter Maul, as set forth in the pleadings, are: That on November 27, 1937, as he was performing his work for the defendant company, he stumbled and fell, while carrying a bundle of pipe for the defendant corporation, and he thereby sustained an injury to the first and second lumbar vertebrae of his spine. It is also charged by plaintiff that this accident and the physical results occasioned thereby accelerated and lit up a general arthritic condition of his spine, which had theretofore not been disabling, to such an extent that thereafter he became totally and permanently incapacitated to perform any work and labor, which prior to said accident he was capable of performing. The defendant light and power company in its pleadings, in effect, denies the happening of the claimed accident and all other claims made by plaintiff. The record discloses that the Nebraska compensation court found that these injuries in suit arose out of and in the course of plaintiff's employment, and awarded him compensation and medical benefits. Thereafter, on appeal, after trial de novo, the district court for Lancaster county reversed the award and denied the plaintiff recovery. Now, on this appeal, plaintiff contends that the findings of fact as made by the district court in this case are not conclusively supported by the evidence as disclosed by the record; that plaintiff is entitled to a trial de novo therein (Comp.St.Supp.1937, sec. 48-174); and that the district court erred in its denial of his petition.
The evidence discloses, without contradiction, that on November 9, 1938, plaintiff Maul was 58 years of age; that immediately prior to November 27, 1937, he had been employed by the Iowa-Nebraska Light & Power company as a laborer for 16 or 17 years; that this employment was “steady”. Maul's testimony is that during the 16 years he laid off only three times, and then because he had “an awful cold;” that during the last year immediately preceding November 27, 1937, he had not laid off at all on account of ill health; that he was able to do his part of the work, and was “earning the same wage that other men were earning working right with him.”
In the early afternoon of November 27, 1937, plaintiff together with three other employees of the defendant company, under the immediate supervision of defendant's foreman, was engaged in carrying “inch and a quarter” pipe from a box car across a neighboring street and into defendant's “pipe house.” These pipes, the record discloses, were tied in bundles of some five or six each, which weighed approximately 125 pounds a bundle. Each bundle was being carried by two men, the ends of the bundle resting on the shoulders of the carriers. Extending into this pipe shop, at right angles to one of its inclosing walls, is an elevated portion of the floor. This elevation is quadrilateral in shape and kept in place by bordering planks set on edge and secured by stakes. Thus constructed, it forms an obstruction to the passer by from four to six inches high. It is referred to in the record as a platform. On the afternoon in question, while engaged in carrying a bundle of pipes and passing in the vicinity of this elevation, plaintiff's right foot came in contact therewith causing him to stumble and fall to the ground. This contact, it appears, was near the corner of this platform as it extended into the shop. The jar suffered from the fall was of course increased by the weight then being carried by plaintiff. As to Maul's position at the time of this fall, with reference to the platform, the foreman testified: “Out far enough so when he grabbed his side with his right hand and kind of brought his foot that way (indicating), he was past the platform like that (indicating);” he was away from the corner of the platform “in the neighborhood of two and two and a half” feet. Plaintiff testifies that he did not feel any pain before he stumbled, but immediately afterwards a pain “hit him” in the “right lower part of (his) stomach.” He grabbed his lower right side with his hand and manifested great pain. He was unable to stand up when they attempted to raise him to his feet, saying, “That hurts too much.” The foreman had the workmen bring over a small tool box to where Maul was lying, and when some coats had been thrown upon it, Maul was picked up and laid over on it on his stomach, and he rested in that position with his knees on the ground and his chest and stomach over the tool box. The boys called an ambulance right away, and when it arrived, went to the hospital with Maul. He was taken to St. Elizabeth Hospital of Lincoln, where the company doctor or surgeon took him in immediate charge. We have in the record what is referred to as exhibit 13. It is the complete record of Peter Maul's case, as far as the hospital is concerned. It comprises 31 pages. It includes the records of attending physicians, by nurses, and from the laboratories. The first entry bears date “11-27-37” and the last “12-31-37.” The record further discloses the following at the trial on this case in the district court, viz.:
It is to be noted that statements contained in exhibit 13 do not come to us under sanction of the customary oath. Strictly speaking, the recitals and facts therein contained are hearsay. A possible exception exists as to the written report and findings of Czar Johnson, M. D., bearing date of December 6, 1937, who, prior to the commencement of the trial in the district court, had departed this life. Other evidence in the record discloses that Dr. Czar Johnson was called in consultation by the attending physician, Dr. Blum, and that Dr. Czar Johnson participated in an examination of Peter Maul, and in his written report and findings we have the result of Dr. Johnson's professional examination. His conclusions and findings are that the disabilities and injuries, under which Maul was suffering at the date of the examination, were traumatic in their origin, and tend to sustain a recovery in Maul's behalf in the present action.
“Said a learned judge: ‘What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.’ ” 1 Jones, Evidence, Civil Cases (4th ed.) sec. 319. See cases in note 14, page 594 of foregoing citation; also Lassone v. Boston & Lowell R., 66 N.H. 345, 24 A. 902, 17 L.R.A. 525.
Without a determination of the matter above presented, we shall consider all statements of exhibit 13 as hearsay, presented to the court by the Iowa-Nebraska Light & Power Company, and, without objection of the opposing attorney, admitted in evidence by the trial court. On this subject, we are committed to the rule, viz.: Metz v. Chicago, B. & Q. R. Co., 88 Neb. 459, 129 N.W. 994. See, also, Sheibley v. Nelson, 84 Neb. 393, 121 N.W. 458. It follows that each statement contained in exhibit 13 is for the proper consideration of this court in this trial de novo, to be given such...
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