Miller v. Livestock Buying Co., 33327

• Decision Date: 22 May 1953
• Docket Number: No. 33327,33327
• Citation: 58 N.W.2d 596,157 Neb. 51
• Parties: MILLER v. LIVESTOCK BUYING CO., Inc.
• Court: Nebraska Supreme Court

Page 596

58 N.W.2d 596

157 Neb. 51

MILLER v. LIVESTOCK BUYING CO., Inc.

No. 33327.

Supreme Court of Nebraska.

May 22, 1953.

Syllabus by the Court.

1. On any appeal to this court in a workmen's compensation case the cause will be here considered de novo upon the record.

2. 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.

3. A compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.

4. The rule of liberal construction of the Workmen's Compensation Act applies to the law, 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 within the rules above set out, nor does it permit a court to award compensation where the requisite proof is lacking.

George Evens, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda and Edwin Cassem, Omaha, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

This appeal involves two workmen's compensation cases. One action was by plaintiff as administratrix of the estate of her husband Carl J. Miller, deceased, hereinafter called decedent, to recover compensation from defendant Livestock Buying Company, Inc., a division of Safeway Stores, Inc., for the period accruing prior to death of decedent, and the other was by the widow as plaintiff to recover from defendant any amounts accruing to her after decedent's death. Recovery in both cases was denied by the workmen's compensation court where rehearing was waived, and upon appeals to the district court they were by stipulation consolidated for trial de novo with one decree to dispose of both cases. Concededly there was but one issue ultimately presented to the trial court for decision in both cases. That issue was whether decedent's death on August 19, 1948, was caused by accidents suffered by him on October 17, 1945, and October 16, 1946, or whether his death was caused by bronchiogenic carcinoma or cancer of the lungs.

After trial whereat evidence was adduced, the trial court rendered a decree which found and adjudged the issue generally in favor of defendant and against plaintiff in each case, and dismissed each cause of action upon the ground that plaintiff therein and 'failed to sustain the burden of proving that the death of plaintiff's decedent was the result of any accident and injuries sustained in the employ of the defendant.' Plaintiff's consolidated motion for new trial was overruled, and she appealed, assigning that the trial court erred in finding that decedent's death was not the result of his injuries. We conclude that the assignment should not be sustained.

It is now well established that: 'On any appeal to this court in a workmen's compensation case the cause will be here considered de novo upon the record.' Schneider v. Village of Shickley, 156 Neb. 683, 57 N.W.2d 527, 528.

In that connection, other rules applicable here are: '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.

'A compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment.

'The rule of liberal construction of the Workmen's Compensation Act applies to the law, 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 within the rules above set out, nor does it permit a court to award compensation where the requisite proof is lacking.' Hassmann v. City of Bloomfield, 146 Neb. 608, 20 N.W.2d 592. See, also, Kuhtnick v. Carey, 124 Neb. 762, 248 N.W. 89; Kuhtnick v. Carey, 124 Neb. 761, 248 N.W. 92.

Plaintiff relied primarily upon the holding in Reitz v. Petersen, 131 Neb. 706, 269 N.W. 811, and other cited cases, to the effect that: 'A fact, relation or state of things once shown to exist may be presumed to continue as long as such fact, relation or state would naturally continue; and especially where subsequent events, disclosed in evidence, are entirely in harmony and consistent with the continuance of such fact, relation or state.' In that connection, however, as hereinafter observed, the presumption relied upon by plaintiff was overcome by evidence appearing in the record, and plaintiff adduced no evidence except the conclusion of decedent's wife that death was caused by personal injuries resulting from any accident arising out of and in the course of decedent's employment. In other words, plaintiff offered no competent evidence that decedent's death was caused by injuries sustained in the employ of defendant.

In that regard, the record substantially discloses the following material situation: Decedent was employed by defendant i...