Mook v. City of Lincoln
| Decision Date | 16 April 1943 |
| Docket Number | 31542. |
| Citation | 9 N.W.2d 184,143 Neb. 254 |
| Parties | MOOK v. CITY OF LINCOLN et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Either party who refuses to accept the findings, order, award or judgment of a judge of the workmen's compensation court may within fourteen days file application for, and obtain, a rehearing before the full court.
2. The right to a rehearing by either party, timely and in proper form applied for, is paramount to, and exclusive of, the right of appeal to the district court from such original decision.
3. Before there may be a recovery in a workmen's compensation action for accidental death, the plaintiff must show by a preponderance of the evidence that the deceased sustained an injury which caused his death arising out of and in the course of his employment, and proof must be made by evidence leading either to a direct conclusion or a legitimate inference that such was the fact.
4. In a case where an employee dies suddenly and mysteriously while engaged in his work, the burden of proof that his death was an accident arising out of his employment rests upon the claimant for compensation, and such proof must amount to something more than guess.
Kennedy Holland, DeLacy & Svoboda and Edwin Cassem, all of Omaha for appellants.
Frederick J. Patz, of Lincoln, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action under the workmen's compensation statutes wherein Estella C. Mook, plaintiff and appellee, seeks to recover workmen's compensation on account of the death of her husband, Albert L. Mook, from the city of Lincoln, his employer, and the Travelers Insurance Company, the compensation carrier for the city of Lincoln, defendants and appellants. Plaintiff claims that her husband died as the result of an accident sustained February 18, 1941, while he was engaged in the performance of his duties as a city fireman.
The action was first tried to one judge of the compensation court where an award as to compensation in accordance with the claim was rendered in favor of the plaintiff.
On the last day for appeal the defendants filed a waiver of rehearing before the full compensation court and sought to take an appeal to the district court. On the same day, but after waiver of rehearing before the full compensation court by the defendants, the plaintiff filed an application for rehearing and modification of the award, claiming that the award was erroneous in that there was a failure to award medical expenses, a statutory attorney's fee and proper costs. Over objection of the defendants rehearing was had to the full compensation court. On rehearing the full court rendered an award sustaining the previous award and making proper allowances for medical expense, attorney's fees and costs.
From the award of the full compensation court an appeal was taken to the district court where the award of the compensation court was sustained. From the award of the district court the case comes here on appeal.
Two important questions are presented for determination by this appeal. The first is the propriety, under the circumstances, of allowing the rehearing before the full compensation court following the waiver of rehearing by the defendants who were ostensibly the losers at the hearing before the one judge, and the second is that of whether or not Albert L. Mook came to his death accidentally within the meaning of the workmen's compensation statutes. We will deal with these questions in the order set forth.
On the question of rehearing, the statutes in section 48-174, Comp.St.Supp.1941, provide as follows: "(5) Either party at interest who refuses to accept the findings, order, award or judgment of the said judge may, within fourteen days after the date thereof, file with the said court an application for a rehearing, plainly stating the errors on which such party relies for reversal or modification."
This language is clear and specific. The application of the plaintiff strictly conformed with the plain provisions of this statute and there is no way that this court could deny that right except by judicial legislation. This we are unwilling to do.
This court held in City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576, 577, in an interpretation of this provision as follows: "The right of either party to a 'compensation proceeding' to refuse to accept the findings, order, award or judgment of the judge of the Nebraska workmen's compensation court who is assigned to hear the same, and to secure, in the manner provided by law, a rehearing or retrial thereof by such compensation court and a determination by a majority of the members thereof, is paramount to, and exclusive of, the right of appeal from such original decision."
It is the acceptance of the award, or perhaps more aptly stated, it is the failure to make application for rehearing in the manner provided by statute that defeats the right to a rehearing. Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802.
As to the second question, there is no doubt that Albert L. Mook fell while he was engaged in the performance of his duties as a city fireman. There is no doubt that he died at least within the space of a few minutes, if not instantly. The question for determination is whether he died as a result of the fall or fell as the result of his death.
Albert L. Mook, a city fireman, on the evening of February 18, 1941, shortly after seven o'clock p. m. responded with other firemen to a fire call at 2401 Lynn street, Lincoln, Nebraska. The temperature was perhaps about 15 degrees above zero or lower. The house faced to the north and on the south end was a room the roof of which was four or five feet lower than that of the other part. In the east side of the main roof was a dormer. The fire appears to have been in the vicinity of the dormer. The fire, at the time of the fall of Mook, appears to have been under control. At the time of the fall there was a ladder extending from the ground against and above the roof of the lower room and another against and above the main roof somewhat to the south of the dormer. A third ladder was hooked over the ridge and was lying flat on the higher roof and also to the south of the dormer. Mook and another fireman were on the east side of the higher roof and in the vicinity of the two ladders at the time of the fall and a third was inside the dormer. From the evidence it is not clear what position Mook was in when his fall began. It was variously testified that he was on the roof with his toes between the boards from which shingles had been removed; that he had been lying on the ladder which was flat on the roof; that he was standing on the ladder that extended up from the ground and that he was leaning forward toward the roof; that one foot was on the standing ladder and the other on the roof. Some of the evidence would indicate his fall started when he was in an upright position and some that he was not. The manner of the fall is clothed in the same degree of uncertainty. Some of the evidence would indicate that his foot or feet slipped on the roof and that he reached for the ladder or the roof and plunged from the higher to the lower roof where the fall was arrested by the ladder to the lower roof and a hose which was on that roof; some that he slipped on the ladder and from there the plunge took place; and some that from his position on the roof, with arms extended as in a dive, the plunge was taken to the lower roof. Some of the witnesses testified that the top of the ladder slipped to the south but not far enough to fall onto the lower roof. The fireman who was on the roof with Mook denied this and stated that he descended the ladder immediately after the fall and that it was then in its original upright position.
Mook made no sound and uttered no word as the plunge was taken except "Oh, gee!" The fireman who was on the roof heard these words, turned and saw the completion but not the start of the plunge. Immediately before Mook had been removing charred shingles from the roof in the vicinity of the dormer.
As soon as possible after the fall he was removed from the roof and into the house where he was placed with the front of his body downward on a davenport with his head turned to the side and attempts at artificial respiration applied. Some minutes later the fire chief arrived on the scene and according to his testimony felt a pulse. On cross-examination he testified that on a former trial he testified that he thought he could feel a flutter in the pulse. He further said that Mook was gasping at intervals of perhaps three seconds. On the former trial he testified that the gasps came at intervals of from a minute and a half to two minutes. Shortly thereafter Mook was pronounced dead by two doctors who had come to the scene. The fire chief observed a skinned place on the left side of the face around the cheek and left temple.
On the second day after the death an autopsy was performed on the body by Dr. George W. Covey who was assisted by Dr. Helmut Zinneman. Other doctors were present during all or a part of the autopsy but no further mention of this fact is required since these other doctors did not give testimony in the case.
The findings of Dr. Covey, to the extent that it is necessary to set them forth here, were the following: There was no external evidence of skull or other bony injury. There appeared to be a slight bruise on the face which was covered by embalmer's makeup. The pleural cavity was free from adhesions and it contained no excess fluid. The pericardial cavity was free from adhesions and contained no excess fluid. The heart was...
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