Sporcic v. Swift & Co.

• Decision Date: 06 February 1948
• Docket Number: 32381.
• Citation: 30 N.W.2d 891,149 Neb. 246
• Parties: SPORCIC v. SWIFT & CO.
• Court: Nebraska Supreme Court

30 N.W.2d 891

149 Neb. 246

SPORCIC v. SWIFT & CO.

No. 32381.

Supreme Court of Nebraska

February 6, 1948

Opinion Modified on Rehearing March 19, 1948.

See 31 N.W.2d 404.

Appeal from District Court, Douglas County; Day, Judge.

Syllabus by the Court.

1. In making a case for compensation under the workmen's compensation law, more than a preponderance of evidence is not required.

2. To sustain an award in a workmen's compensation case, it is sufficient to show that an injury, resulting from an accident arising out of and in the course of the employment and preexisting disease combined to produce disability.

3. Persons engaged in performing services of the same character as those to be valued, and persons who have knowledge of the business in and for which the services have been rendered and of their value, may give their opinion as to the value of the services.

4. An employee may be totally disabled for all practical purposes and yet be able to obtain trivial occasional employment under rare conditions at small remuneration. The claimant's status in such respect remains unaffected thereby unless the claimant is able to get, hold, or do any substantial amount of remunerative work either in his previous occupation or any other established field of employment for which he is fitted.

5. The Supreme Court may allow an employee a reasonable sum as attorney's fees for proceedings in such court when the employer appeals from the district court to the Supreme Court and fails to obtain any reduction in the amount of the award.

Rosewater Mecham, Shackelford & Stoehr, of Omaha, for appellant.

E D. O'Sullivan, A. J. Whalen, and E. D. O'Sullivan, Jr., all of Omaha, for appellee.

Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELI, and WENKE, JJ., and WESTERMARK, District Judge.

MESSMORE Justice.

This is an appeal from a judgment of the district court for Douglas County granting compensation to the plaintiff under the Workmen's Compensation Act. R.S.1943, § 48-101 et seq. The cause was originally tried before a judge of the Nebraska Compensation Court and dismissed September 19, 1945, for want of sufficient evidence to sustain the finding that the plaintiff's disability was caused by or due to an accident while in the course of his employment. On October 2, 1945, or within 14 days from the date of the dismissal of the cause, the plaintiff filed a petition in the district court setting forth his employment; the factual situation with reference to the accident; the disabilities received therefrom; the wages he was earning at that time; and praying for compensation, medical and hospital expenses and other and further relief. The petition further alleged that the judge of the Compensation Court erred in dismissing the plaintiff's cause, and in due time the plaintiff waived a rehearing before the Nebraska Compensation Court and gave notice of appeal to the district court.

The defendant filed a special appearance objecting to the jurisdiction of the district court over the subject matter for the reason that no lawful, proper, or sufficient petition was filed by the plaintiff in the district court within 14 days after the order of dismissal made by the Workmen's Compensation Court.

The defendant argues that plaintiff's petition in the instant case failed to have attached to it the pleadings and orders of the Workmen's Compensation Court as required by law, citing Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N.W. 352, to the effect that the petition on appeal in the cited cases, from the compensation court, included a copy of the pleadings before the Workmen's Compensation Court, setting forth the issues, and also the order of dismissal of the Workmen's Compensation Court.

In the instant case the petition was amended by interlineation to include the petition, answer and order as exhibits to be attached to the petition, which was apparently after the 14-day period.

In the cited case, followed by Bell v. Denton, 136 Neb. 23, 284 N.W. 751, there was no specific requirement that the pleadings, orders and findings of the Workmen's Compensation Court be attached to the petition on appeal. Section 48-181, R.S.Supp.1945, which provides for direct appeal when rehearing is waived before the Nebraska Workmen's Compensation Court to the district court, makes no such requirement that such pleadings, orders or findings be attached to the petition on appeal to perfect such appeal where the petition sets out the errors of the compensation court and alleges that rehearing was waived and notice of appeal given in due time.

The trial court did not err in overruling the special appearance.

After trial de novo in the district court, the court decreed that on October 10, 1944, the plaintiff, while in the employ of the defendant, earning wages in excess of $40 per week, received personal injuries caused by an accident arising out of and in the course of his employment; that as a result of the accidental injuries plaintiff was temporarily, totally disabled from October 10, 1944, to November 22, 1944, and had been paid all compensation due him from the defendant for said period of time; that the plaintiff, as a result of the accidental injuries, 'has been totally and permanently disabled from the 22nd day of May, 1945, until the present time, and will be totally and permanently disabled for the remainder of his life and is entitled to receive the sum of $15.00 per week from the defendant beginning May 22nd, 1945, for a period of 300 weeks from said date and thereafter the sum of $12.00 per week for the remainder of his life, as and for total permanent disability'; and further, that defendant pay to Dr. Willard H. Quigley the sum of $200 and to Dr. Fred J. Schwertley the sum of $25, and pay to plaintiff the additional sum of $86.40 paid by him as necessary hospital and medical expense.

Upon the overruling of a motion for new trial, the defendant appeals.

For convenience, the appellant will be referred to as the defendant and the appellee as the plaintiff.

The defendant contends that the plaintiff has failed to prove by a preponderance of the evidence that he has an ailment caused by accidental injury sustained in the course and out his employment.

It appears from the record that the plaintiff, 36 years of age, was employed by the defendant intermittently from 1933 to 1936, and more steadily from 1939 until about May 27, 1945. He worked as a bacon slicer, using a machine to do the slicing. The becon was kept in a cooler about 15 feet distant from where he worked. On October 10, 1944, at approximately 2:45 in the afternoon, he was going to the cooler to get some more bacon to slice. He opened the cooler door, which was five or six inches thick and weighing between 250 and 300 pounds, by pulling the door toward him. At the same time his immediate supervisor opened a door in close proximity to the cooler door, and pushed it, the result being that the plaintiff was caught between the two doors, the cooler door striking him in the chest and the other door in the back, placing the plaintiff in what has been called a 'squeezing' position. He received injuries to his back, causing severe pain. About 3:30 p. m. he went to see the nurse employed by the defendant. She told him to return the next morning. He was then sent to Dr. Hansen who applied heat treatments, and then to Dr. Hill who gave no treatments but took some X-ray pictures. The casualty representative of the defendant then sent him to Dr. Johnson, where he received some heat treatments. The doctor later taped his back and then subsequently removed the tape and applied more heat treatments.

The plaintiff received compensation for a period of six weeks for total, permanent disability. Thereafter Dr. Johnson taped his back and fitted him with a brace which apparently helped him. He returned to work and was assigned to a different type of work, that is, nailing box lids and stamping the boxes with a machine. He testified that he suffered pain in the left side and lower ribs, which bothered him when he did any bending. On account of the pain, he left his employment on or about May 27, 1945. On May 26, 1945, he went to see his family doctor, for the reason that the casualty representative of the defendant informed him there was nothing wrong with him and the doctor had released him. The family doctor sent him to a hospital where he was given penicillin treatments, and also applied a cast from his hip joints up to and under the shoulder blades. He wore the cast for three months, when it was removed. He was then fitted with a canvas belt with steel braces. The belt was 14 to 16 inches in width. He wears the belt most of the time, and is unable to do any lifting.

It further appears from the record that the plaintiff was injured in an automobile accident about December 22, 1941. As a result of such injuries, he filed a petition for damages in the district court. This petition was introduced into evidence by the defendant. It alleged in part, in substance, that the plaintiff received a severe sprain of the sacroiliac joint and of the lumbosacral joint, causing permanent disability which could not be determined at that time. This case has not been tried. On October 11, 1944, the plaintiff signed a statement wherein he said in part, that about who and a half years previously he suffered a back injury in an automobile accident for which he took treatments, the last one being four or five months previous to the present accident, and that the X-rays showed nothing except strains at that time.

Plaintiff further testified that when he returned to work he received 73 1/2 cents per hour, which constituted his basic pay for 40 working hours per week; that previous to the...