Mullen v. City of Hastings

• Decision Date: 07 July 1933
• Docket Number: 28703
• Citation: 249 N.W. 560,125 Neb. 172
• Parties: HARRIET LOUISE MULLEN, APPELLEE, v. CITY OF HASTINGS, APPELLANT
• Court: Nebraska Supreme Court

249 N.W. 560

125 Neb. 172

HARRIET LOUISE MULLEN, APPELLEE, v. CITY OF HASTINGS, APPELLANT

No. 28703

Supreme Court of Nebraska

July 7, 1933

APPEAL from the district court for Adams county: J. W. JAMES, JUDGE. Reversed and dismissed.

Judgment reversed and action dismissed.

Syllabus by the Court.

1. In workmen's compensation cases the Supreme Court now hear the same de novo.

2. The burden of proof is upon the plaintiff to prove by a preponderance of the evidence that personal injury was caused to the employee by an accident arising out of and in the course of his employment.

3. Awards of compensation cannot be based upon possibilities or probabilities merely, but must be based on sufficient evidence showing that the workman suffered his disability because of an injury arising out of and in the course of his employment.

4. When 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 mere guess.

5. Evidence examined, and held insufficient to prove that claimant's deceased suffered a compensable injury.

Appeal from District Court, Adams County; James, Judge.

Proceeding under the Workmen's Compensation Act by Harriet Louise Mullen, surviving widow of Harley Mullen, deceased employee against the City of Hastings, employer. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and the proceedings dismissed.

Kennedy Holland & DeLacy, Stiner & Boslaugh and Edmund P. Nuss, for appellant.

R. O. Canaday, contra.

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

OPINION

EBERLY, J.

This is a proceeding instituted by Harriet Louise Mullen, widow of Harley Mullen, deceased, under the workmen's compensation law. Comp. St. 1929, secs. 48-101 et seq. Upon trial in the district court for Adams county, judgment was entered for the plaintiff. Defendant city appeals.

The deceased, approximately 49 years of age, was employed as a member of the fire department of the defendant, city of Hastings, and was on duty as such at the time of his death. About 10 o'clock p. m. on June 17, 1931, this fire department had been summoned to Ingleside, Nebraska, by the discovery of a fire in some farm buildings of the state hospital situated at that place. The deceased, as a member of this department, as operator and mechanic in charge of what is referred to in the evidence as the "fire truck and pumper," in pursuance of the duties of his employment, proceeded to the scene of this fire. On arrival of this apparatus it was ultimately placed within 20 feet of a lagoon and approximately four blocks east of the burning building. A suction pump, being a part of the equipment of the "fire truck and pumper," was placed in the waters of the lagoon, and two lines of hose connected with the "pumper" were laid toward the burning buildings, and from this source the transmitting of water to the fire was commenced. Shortly after this pumping started, one of these lines of hose burst at a point approximately 1,100 feet west of the "fire truck and pumper." Immediately after this occurrence Harley Mullen, who had just previously been engaged in operating the "pumper," was found lying on the ground, in close proximity to this machine, dying, if not dead. One witness testified that he saw Harley Mullen as this operator was falling from the pumper. But it was nighttime and the vicinity of this machine was not well illumined at this moment. Neither this witness, nor in fact any other person, is able to tell us what happened at the pumper, if anything, to cause this fall. Immediate investigation of this machine thereafter disclosed no signs of an accident. It remained in good condition except that it had "choked down."

Within three hours after the death of Harley Mullen an autopsy was performed on his body. The results of this constitute practically the entire basis of the conflicting claims of the plaintiff and defendant in this litigation.

So far as objective symptoms or evidence disclosed by this examination of this body are concerned, they may, for the purposes of this case, be limited to the following:

"There are superficial contusions on the left temporal region and on the left malar bone, extending down over the left cheek. There is also a contusion on the lateral left palpebral cleft, and a slight contusion over the right eyebrow. Palpation of the skull reveals nothing remarkable. The bones feel smooth and solid. * * * Examination of the nose is negative excepting perhaps a few abrasions on the nasal tip. * * * Palpation of the heart reveals an apex that deviates to the left to the midclavicular line. The left ventricle of this heart is firm, not flabby; and death took place with this heart in systole. The right auricle is slightly dilated and contains blood, but the dilatation does not extend past the right sternal border. * * * Opening of the pericardial cavity shows a pericardial sac of normal thickness. The pericardial wall inside is smooth and contains a few centimeters of fluid, but this is of normal quantity. The epicardium is covered with a good layer of fat, the fat increasing as it goes toward the auricles. The heart is of normal size, is not roughened to the palpating finger, and inspection reveals nothing remarkable. * * * An incision was made through the scalp transversely over the vertex. The anterior flap of the scalp was peeled forward and loosened to the supraorbital ridges. The contusion over the frontal bone shows slightly on the epicranium manifested as small hemorrhagic areas. No fracture is palpable or visible. The posterior flap of the scalp was peeled backward to the external occipital protuberance. No contusions or fractures are palpable or visible. The cranial osseous cap was removed with a saw. The cerebrum was inspected and no abnormal changes were visible. The blood vessels and color were normal. No areas of hemorrhage were seen. The brain was lifted and the anterior and middle fossae were palpated and inspected. These were free from blood or bloody extravasations. No fracture or pathology was seen. The tentorium was split lateralward, releasing the cerebellum. No fracture or any abnormality was found in the posterior fossa. Numerous sections were made through the hemispheres and their nuclei, but no hemorrhagic areas or pathology was visible. * * * Sections of the cerebellum show nothing remarkable. * * * The pathological diagnosis is as follows: Healed pulmonary tuberculosis. Chronic pericholecystitis. Heart in strong systole. The immediate cause of this man's death was perhaps some physical or even emotional stimulation that produced the post-mortem systole of the heart."

The physician performing the post mortem, called as a witness by plaintiff, testified in part as follows:

"By contusion we mean either a slight hemorrhage or a bluishness of tissue, which may be involving the second layer of skin." Further that while personally he had never seen it, medical authorities record cases where contusions in the region where found on this body have...