Pixa v. Grainger Bros. Co.

• Decision Date: 26 November 1943
• Docket Number: 31702.
• Parties: PIXA v. GRAINGER BROS. CO. et al.
• Court: Nebraska Supreme Court

12 N.W.2d 74

143 Neb. 922

PIXA v. GRAINGER BROS. CO. et al.

No. 31702.

Supreme Court of Nebraska

November 26, 1943

Syllabus by the Court.

1. In a workmen's compensation case, where the evidence fails to show a causal connection between an accident suffered by an employee and his instantaneous death from heart disease some time thereafter, there can be no award of compensation.

2. The burden of establishing by a preponderance of the evidence that an accident contributed directly to the death of an employee is not met by mere guess, surmise conjecture, speculation, or possibility.

3. The proof of an accident arising out of and in the course of employment must be made by sufficient legal evidence leading to the direct conclusion, or a legal inference therefrom that an accidental injury occurred and caused the disability.

Good & Simons, of Lincoln, for appellant.

Baylor TouVelle & Healey, of Lincoln, for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.

PAINE Justice.

This is a workmen's compensation case, in which the action was dismissed April 20, 1942, at a hearing before one judge of the compensation court, and on rehearing before the full compensation court a dismissal of the claim was entered July 13, 1942, which action was affirmed by the district court May 6, 1943, from which order the plaintiff has appealed to this court.

The widow, as plaintiff, brings this action for the death of her husband, who had been employed for a number of years by Grainger Brothers Company, and at the time of his death was driving a delivery truck for said firm.

There is not much dispute about the following facts: The deceased was treated by Dr. John C. Thompson for heart disease on May 31, 1940, at which time his condition was so serious that he was taken to the hospital, and from May 31 to June 7 he was treated there. He was unable to breathe at night, unless propped up. He had insufficient power in his heart to provide adequate circulation. The doctor continued to see him, and gave him digitalis glucosides, which he was to continue taking, and diagnosed the heart condition as acute myocarditis, which is an inflammation of the heart muscle, which may have followed a recent attack of influenza. An X-ray examination also showed an infection from diseased teeth, several of which were removed later that summer. The doctor advised rest in bed, and also that he should not do any hard work. He went back to work about July 1, telling the doctor that in order to eat he had to work. Dr. Thompson testified that he never complained of pain, which was rather unusual, and that in such a condition either the heart muscle gradually fails and cannot be brought back, or he might have had an acute dilation of the heart, which would result in sudden death.

Henry Goe, his foreman, testified that from the time he went back to work until his death he appeared to have slowed down, and while delivering groceries for his employer he dropped dead on January 30, 1941. No post mortem was performed, and no physician was called, and the required death certificate was made out by the county attorney, which recites that death occurred at 5:20 p. m., January 30, 1941, from a "Sudden heart attack causing death before a physician could be called; no marks of violence, no sign of foul play."

The plaintiff filed a petition with the compensation court on July 23, 1941, against Grainger Brothers Company, a corporation, and Employers Mutual Liability Insurance Company of Wisconsin, as defendants, alleging that the deceased came to his death as a direct result of injuries received in an accident.

The evidence relating to this accident may be summarized about as follows: On December 19 or 20, 1940, at about 10 o'clock in the morning, the deceased was carrying half a crate of head lettuce into the Y. M. C. A. cafeteria in Lincoln and slipped on ice in the alley east of the building, and fell with his shoulder against the building, and the crate of lettuce fell on him, injuring his back. However, he continued to work until about 3:45 in the afternoon.

Henry Goe, truck foreman of Grainger Brothers Company, testified that on the day of the accident deceased came back and reported that the lettuce had fallen on him and hit him in the chest or stomach, and that a report of the accident was made to the insurance carrier, setting out that deceased had slipped on the ice and fell, twisting his back, and that claim was made for compensation for sprained back.

Disability began on December 20, and compensation began on December 27 and stopped on January 2, for five-sevenths of a week, at $14 a week, and a claim of $10 compensation, $22.75 medical expense, making a total claim of $32.75, was paid. It is claimed by the plaintiff that deceased went back to work before he had entirely recovered from this injury.

Henry Goe testifies that he was shorthanded; that two of his employees had gone to the Rose Bowl game in California, and he called deceased by telephone and asked if he could come back to work because he needed him, and that he acted stiff in the back for several days until he got loosened up, and in a week or two he got in stride again and did his usual work of truck driving and delivering groceries and food; that a short time before his death he saw him when he was loading up his last truckload, with cases of groceries which might weigh from 5 pounds to 60 pounds.

The plaintiff testified that the shortness of breath of her husband continued until the day of his death, and he had to be propped up with a pillow every night after the accident. Her contention is that his death was directly contributed to by the accident which he had on December 19, and in support thereof plaintiff produced the evidence of a duly qualified medical expert whose specialty was internal medicine and diagnosis, including diseases of the heart. He did not treat nor see the deceased, but the facts came to him from hypothetical questions which set forth the material parts of the testimony of the witnesses. He gave as his expert opinion that the cause of death in this case was an injury to the heart received at the time of the accident, for the fall on the ice caused a strain which could have injured his heart in one of three ways, by its touching the backbone, or the sternum, or the severe strain while he was falling; that the fact that he had to be propped up in bed, had chest pains and shortness of breath immediately following the accident supported this contention. This expert witness gave it as his positive opinion that the accident aggravated his previously existing heart condition.

Deceased went to Dr. Thompson after this accident, who testified from his office notes, showing that deceased fell by the Y. M. C. A building about 10 a. m., but continued to carry sacks of potatoes and other loads until about 3:45 p. m., when he was forced to stop by the pain in his back. Examination disclosed marked muscle spasm on the left side of the back, and tenderness over the third lumbar vertebra (in the small of the back). His spine was X-rayed and...