McNeil v. Omaha Flour Mills Co.

• Citation: 261 N.W. 694,129 Neb. 329
• Decision Date: 28 June 1935
• Docket Number: 29557.
• Parties: MCNEIL v. OMAHA FLOUR MILLS CO.
• Court: Supreme Court of Nebraska

261 N.W. 694

129 Neb. 329

MCNEIL v. OMAHA FLOUR MILLS CO.

No. 29557.

Supreme Court of Nebraska.

June 28, 1935

Syllabus by the Court.

1. An employer, against whom an award of compensation is allowed by the commissioner, is not required on appeal to reverse the title of the case, but may appear as defendant therein and file the petition demanded on appeal by the terms of section 48-139, Comp. St. 1929.

2. " Heat prostration may be a compensable accident, under the workmen's compensation law, if the workman is subjected to a greater hazard from the heat than that to which the public generally in that locality is subject." Herbert v. State, 124 Neb. 312, 246 N.W. 454.

Appeal from District Court, Douglas County; Dineen Judge.

Proceedings under the Workmen's Compensation Act by Winifred M McNeil to recover compensation for the death of her husband Michael W. McNeil, opposed by the Omaha Flour Mills Company, employer. From a judgment of the district court, on appeal from the compensation commissioner, denying compensation, the claimant appeals.

Judgment reversed, with instructions.

Wright & Kennedy and Peter & Peter, all of Omaha, for appellant.

Kennedy, Holland & DeLacy and Ed J. Svoboda, all of Omaha, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and PAINE, JJ.

GOSS Chief Justice.

Plaintiff sued for compensation because of the death of her husband, Michael W. McNeil, while employed by defendant. She claimed the death was by reason of a heatstroke or sunstroke. The compensation commissioner made an award in her favor. On appeal the district court denied compensation on the ground that the employee was not subjected to a greater hazard from the heat than that to which the public in general or workmen in the locality were subject. Plaintiff appealed. The case is for trial de novo here.

Plaintiff's first assignment is that the district court erred in not dismissing defendant's petition on appeal from the award of the compensation commissioner. The basis for this assignment is that the district court had no jurisdiction to entertain the appeal for reasons set forth at great length in her brief. The most important of these, in our judgment, is that, in its petition on appeal, defendant did not reverse the title and designate the party filing such petition on appeal as plaintiff and the party upon whom it was served as defendant. Counsel for plaintiff base this and other reasons upon their interpretation of section 48-139, Comp. St. 1929. We find no such requirement in that section. It says: " In case either party refuses to accept the recommendation or awards of the compensation commissioner, either party may submit to the district court a verified petition," etc. We find no direction there or elsewhere that, when an employer has an award rendered against him, he must on appeal allocate himself as plain tiff and his adversary as a defendant. Observation shows the practice has followed both methods, but usually that pursued here. It preserves the natural and logical arrangement of the parties and saves confusion of their identity, especially when appeals are taken to the supreme court. It seems to have been the consistent practice, particularly since the law was amended in 1929, to designate the parties on appeal both to the district court and to the supreme court as they were designated before the compensation commissioner. An examination of the pleadings in the district court shows that defendant filed its petition in due time setting forth the issues before the compensation commissioner and the award. Plaintiff did not make a special appearance, but appeared generally and moved to dismiss the appeal and to affirm the award on about the same grounds as are set up here. When the motion was overruled, plaintiff answered generally the petition of defendant. We are unable to find any merit in the assignment that jurisdiction of the appeal was lacking in the district court. We are of the opinion that the appeal to the district court shows appellant took every step required by the statutes to be taken to perfect the appeal.

The evidence shows that plaintiff is the widow of Michael W McNeil, who was about 58 years of age when he died on the 19th day of July, 1934, while employed by the Omaha Flour Mills Company as a watchman at its plant on the railroad tracks at about the foot of B, C and D streets at Twenty-ninth street, Omaha (South Side, formerly South Omaha). He had been employed as a watchman for defendant for about eight months. This service had been interrupted in the spring of 1934 by a few days' illness, when he had pleurisy, resulting from a cold. The doctor, who attended him then, testified that he examined his heart and...