Shamp v. Landy Clark Company
| Decision Date | 18 February 1938 |
| Docket Number | 30301 |
| Citation | 277 N.W. 802,134 Neb. 73 |
| Parties | ANNA SHAMP, APPELLANT, v. LANDY CLARK COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. When the language of a statute is clear and unambiguous, courts will not by construction usurp the function of the lawmaking body and give it a meaning not intended or expressed by the legislature.
2. After there has been a proper waiver of rehearing before the workmen's compensation court and an appeal has been taken to the district court then by stipulation of the parties the case may be submitted to the district court of any county in the state.
3. The legislature by the use of clear and unambiguous terms and language expressed the intent that after a hearing was had before a judge of the compensation court and a party thereto desired a rehearing he had in the first instance the right to a rehearing before the compensation court but such party had the alternative right to waive such rehearing, whereupon he was entitled to an appeal directly to the district court.
4. A party who accepts the judgment of a single judge of the compensation court may not insist upon rehearing before the full compensation court where the opposing party waives such rehearing and takes an appeal direct to the district court.
5. In case of a hearing before the judge of the compensation court where findings and judgment are rendered and one party accepts such findings and judgment and the other does not, but, in accordance with law, waives rehearing before the compensation court such party may have an appeal directly to the district court.
6. The word " accident" as used in this act (Workmen's Compensation Act) shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently with or without human fault and producing at the time objective symptoms of an injury. Comp.St.1929, § 48-152, as amended, Laws 1935, c. 57, § 42.
7. Where any one or more of the essential elements of an accident are absent there can be no recovery for accidental injury or death under the workmen's compensation statutes.
8. The burden of proof in compen sation cases is upon the claimant to show with reasonable certainty that the employee sustained injury or death from an accident which arose out of and in the course of employment.
9. " 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." Mullen v. City of Hastings, 125 Neb. 172, 249 N.W. 560.
Appeal from District Court, Lancaster County; Broady, Judge.
Proceeding under the Workmen's Compensation Act by Anna Shamp, claimant, opposed by the Landy Clark Company, employer. From a judgment of the district court denying compensation on appeal after an award of compensation had been made in a trial before a judge of the compensation court, the claimant appeals.
Affirmed.
William Niklaus and Albert P. Schwarz, for appellant.
Hall, Cline & Williams and Flavel A. Wright, contra.
Heard before GOSS, C. J., EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ., and YEAGER, District Judge.
This is an action wherein the plaintiff and appellant seeks to recover compensation on account of the death of her husband, Ole Shamp, from the Landy Clark Company, a corporation, defendant and appellee, under the workmen's compensation law of the state of Nebraska. The action was originally and properly instituted in the compensation court of the state in Lincoln, Lancaster county, Nebraska. A trial was had before a judge of the compensation court and in due and proper form after trial an award of compensation was made in favor of appellant herein and against appellee.
After the award was made, and within the time provided by law, the appellee performed all necessary steps for appeal and filed a waiver of rehearing before the compensation court, whereupon an appeal was taken directly to the district court for Lancaster county, Nebraska, said county being the one in which the claimed cause of action and right of recovery arose.
Upon the filing of the statutory petition for appeal to the district court in compensation cases by the appellee herein, the appellant herein filed objections to the jurisdiction of the district court, wherein it was asserted that the district court had no power to entertain the appeal since there was no stipulation which was concurred in by appellant waiving the right to have the case reheard by the workmen's compensation court and consenting to a trial de novo in the district court. The objection was overruled by the district court, whereupon issues were joined. The appellant preserved her objections in her further pleadings.
On the issues joined a trial de novo was had in the district court which resulted in a denial of a right of recovery by the appellant against the appellee and findings and judgment, proper in form, against appellant and in favor of appellee. From this judgment the appellant brings the case to this court for review.
The facts, to the extent that it is necessary to state them, are substantially as follows: On December 3, 1935, Ole Shamp, a man of the age of 49 years, the husband of appellant, was employed by the appellee to haul coal from the yards of appellee to its customers at a daily wage of $ 3. He worked the 3d and 4th days of December. Late on the afternoon of the 4th he loaded three tons of coal on the truck he was then using and operating and drove from the yards of appellee which were located at Thirty-third and Y streets in Lincoln, Nebraska, to 1830 L street in said city. After the load of coal had been partly unloaded, a woman was passing 1830 L street and was attracted by sounds coming from the truck. On investigation Ole Shamp was found crumpled up and lying upon the coal which remained in the truck. Apparently, from the record, within a few minutes and without regaining consciousness Shamp died. The record indicates that none of the acts or movements of Shamp was observed by any one from the time he left the coal-yard of appellee until after he had collapsed in the truck as above indicated. The body was removed to an undertaking establishment where it was embalmed, and thereafter on the 6th of December, 1935, an autopsy was conducted upon the body by Doctor George W. Covey. The autopsy was conducted in the presence of Doctor Edwin R. Ryerson.
The record presents four assignments of error, but only two of them require consideration.
Appellant contends in her first assignment that the court erred in overruling plaintiff's motion to dismiss defendant's petition on appeal and application for rehearing. In other words, it is the contention of appellant that the district court was without jurisdiction to entertain an appeal direct to the district court from a judge of the workmen's compensation court without the consent of the appellant. This requires an examination of certain provisions of the workmen's compensation statutes.
Section 48-174, Comp. St. Supp. 1935, contains the provisions which control the matters under consideration herein, and the portions applicable are as follows:
The appellant contends that a proper construction of the above-quoted statutory provisions requires a stipulation of the parties before a rehearing may be had in the district court. An analysis will show that this contention is baseless. The language is clear and unambiguous and by context and punctuation the stipulation referred to deals only with the locus of the trial after proceedings are pending in the district court. This court has repeatedly held: "When the language of a statute is clear and unambiguous, courts will not by construction usurp the function of the law-making body and give it a meaning not intended or expressed by the legislature." State v Bishop, 123 Neb. 481, 243 N.W. 658. See State v. First State Bank of Alliance, 122 Neb. 502, 240 N.W. 747; Gibson v. Peterson, 118 Neb. 218, 224 N.W. 272; State v. Heupel, 114 Neb. 797, 210 N.W. 275. The fair purport of the language is that, after there has been a proper waiver of rehearing...
To continue reading
Request your trial