McGinn v. Douglas County Social Services Administration

• Decision Date: 26 March 1982
• Docket Number: No. 44368,44368
• Citation: 211 Neb. 72,317 N.W.2d 764
• Court: Nebraska Supreme Court
• Parties: Peter James McGINN, Appellee, v. DOUGLAS COUNTY SOCIAL SERVICES ADMINISTRATION, County of Douglas, Appellant.

Page 764

317 N.W.2d 764

211 Neb. 72

Peter James McGINN, Appellee, v. DOUGLAS COUNTY SOCIAL SERVICES ADMINISTRATION, County of Douglas, Appellant.

No. 44368.

Supreme Court of Nebraska.

March 26, 1982.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. Findings of fact made by the Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and, if supported by sufficient evidence, will not be disturbed on appeal unless clearly wrong. However, where there is not sufficient competent evidence in the record to warrant the making of the award, or the findings of fact do not support the award, the Nebraska Supreme Court must modify, reverse, or set aside the award.

2. Workmen's Compensation. It is only when an accident arises both out of and in the course of employment that an employee is entitled to benefits under the provisions of the Nebraska Workmen's Compensation Act.

3. Workmen's Compensation: Words and Phrases. The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising from within the scope or sphere of the employee's job. The term "in the course of" refers to the time, place, and circumstances surrounding the accident.

4. Workmen's Compensation: Words and Phrases. The two phrases, "arising out of" and "in the course of," are conjunctive and the claimant must establish by a preponderance of the evidence that both conditions exist.

5. Workmen's Compensation. Injuries resulting from exposure to the elements, such as abnormal heat, cold, snow, lightning, or storms, are generally classed as risks to which the general public is exposed, and do not "arise out of" employment unless the record discloses a hazard imposed upon the employee by reason of the employment greater than that to which the public generally in the area of the hazard is subjected.

T. J. Stouffer and Sheila Priluck of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

John B. Ashford of Bradford, Coenen & Ashford, Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

CAPORALE, Justice.

This is an appeal from a judgment of the Nebraska Workmen's Compensation Court on rehearing which awarded plaintiff-appellee, James Peter McGinn, benefits under the provisions of the Nebraska Workmen's Compensation Act. The defendant-appellant, Douglas County Social Services Administration, the County of Douglas (Douglas County), asserts the compensation court erred so much as the evidence is insufficient to support a finding that Mr. McGinn's injuries resulted from an accident which arose either out of or in the course of his employment with Douglas County. We find the court below erred and reverse.

Findings of fact made by the Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and, if supported by sufficient evidence, will not be disturbed on appeal unless clearly wrong. However, where there is not sufficient competent evidence in the record to warrant the making of the award, or the findings of fact do not support the award, this court must modify, reverse, or set aside the award. Neb.Rev.Stat. § 48-185 (Reissue 1978); Erving v. Tri-Con Industries, 210 Neb. 339, 314 N.W.2d 253 (1982); Union Packing Co. v. Klauschie, 210 Neb. 331, 314 N.W.2d 25 (1982); Husted v. Peter Kiewit & Sons Constr. Co., 210 Neb. 109, 313 N.W.2d 248 (1981).

With the foregoing standard of review in mind, the record establishes Mr. McGinn was employed by Douglas County as a social caseworker. On June 12, 1980, while en route to make a professional call on a recipient of social services provided by Douglas County, Mr. McGinn encountered a severe and unusual rainstorm accompanied by winds up to 100 miles per hour. The storm virtually eliminated visibility. While Mr. McGinn was in the process of trying to find a place to park and wait for the storm to abate, a portion of a tree fell on his car. As a result, Mr. McGinn's neck was broken and he is totally disabled. The compensation court made a specific finding that the plaintiff was exposed to a greater hazard than the general public because the presence of trees increased the dangerous effect of the windstorm. This particular finding, however, is not supported by the record. There is nothing in the record from which it can be concluded that the trees in this particular area of the city presented any different or greater risk than trees in any other area. Indeed, the record amply demonstrates that trees throughout the city were broken and severely damaged by the storm. The finding that the plaintiff was exposed to a greater risk than the public generally is clearly wrong and must therefore be, and is, rejected.

It is only when an accident arises both out of and in the course of employment that an employee is entitled to benefits under the provisions of the Nebraska Workmen's Compensation Act. Neb.Rev.Stat. § 48-101 et seq. (Reissue 1978). The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising from within the scope or sphere of the employee's job. The term "in the course of" refers to the time, place, and circumstances surrounding the accident. The two phrases are conjunctive and the claimant must establish by a preponderance of the evidence that both conditions exist. Union Packing Co. v. Klauschie, supra; Stoll v. School Dist. (No. 1) of Lincoln, 207 Neb. 670, 301 N.W.2d 68 (1981); Appleby v. Great Western Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).

There is no question but that Mr. McGinn suffered an accidental injury. Since the accident occurred while he was en route to visit with one of Douglas County's recipients, the accident occurred in the course of his employment. The crucial question in this case, however, is whether the accident arose out of his employment. The answer is controlled by our prior decisions.

It appears we first faced this question in Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739 (1926). Therein, the deceased employee was killed when a building he was painting was lifted by a violent storm and thrown approximately 30 feet against a tree. We determined that the injury was not compensable, stating: "Thus, we conclude that injuries resulting from exposure to the elements, such as abnormal heat, cold, snow, lightning, or storms, are generally classed as risks to which the general public is exposed, and as not coming within the purview of workmen's compensation acts, unless the record discloses a hazard imposed upon the employee by reason of the employment greater than that to which the public generally is subjected." Id. at 437, 208 N.W. at 741.

We again addressed the question in Crow v. Americana Crop Hail Pool, Inc., 176 Neb. 260, 125 N.W.2d 691 (1964). The decedent was employed to adjust crop hail claims. While en route from one assignment to another, his automobile was struck by a tornado, and he died as a consequence of the injuries he suffered. Therein, we relied on the Gale decision and concluded the death did not arise from a hazard incident to decedent's work, but rather from a hazard common to mankind generally, saying: "There is nothing in the stipulation of facts that shows the decedent was exposed to any different hazard than that which applied to all mankind in the area where his death occurred. He was driving his own car on the highway and met his death by a tornado, a hazard any other person in that locality might have been subjected to, either upon the highway or elsewhere. He was not engaged in protecting the property of the defendant at that time. Indeed, in the instant case the defendant did not determine the manner or time or order of the adjustment of the losses by the deceased. His death resulted from a tornado of which the defendant knew nothing and concerning which it gave no directions to the deceased. Its course was unforeseeable by man and appears clearly to have been an act of God. To hold the defendant liable under the Workmen's Compensation Act in such cases would make the employer an insurer of risks having nothing to do with the employment and not arising therefrom." Id. at 265-66, 125 N.W.2d at 694-95.

It appears that Crow refined the Gale test somewhat in that Crow requires the risk to which the employee is subjected to be greater than that to which the public in the area where the injury occurred is subjected, rather than merely greater than that to which the public generally is subjected.

We encounter the rule again in Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965). In Mead the employee was required to seal boxcars in temperatures which varied between 12 degrees below to 7 degrees above zero. The boxcars were unprotected, open, unheated, and elevated above the ground so that cold air circulated above and below the surface on which...