Tucker v. Paxton & Gallagher Co.

• Decision Date: 06 July 1950
• Docket Number: No. 32754,32754
• Citation: 43 N.W.2d 522,153 Neb. 1
• Parties: TUCKER v. PAXTON & GALLAGHER CO.
• Court: Nebraska Supreme Court

Page 522

43 N.W.2d 522

153 Neb. 1

TUCKER v. PAXTON & GALLAGHER CO.

No. 32754.

Supreme Court of Nebraska.

July 6, 1950.

Syllabus by the Court.

1. The function of this court in a workmen's compensation case is to consider the case de novo unless from the record it appears that the findings are conclusively supported by the evidence.

2. The word 'accident' within the meaning of the Workmen's Compensation Act as applied to the facts of this case means an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing objective symptoms of an injury.

3. In a lawsuit based on personal injuries, wherein the character of the injuries can only be ascertained by scientific examination and analysis, the testimony of a party who has no scientific knowledge on the subject, which testimony is in conflict with testimony based on the scientific examination and analysis, will not bind such party.

4. The burden is upon the plaintiff in a workmen's compensation action to prove by a preponderance of the evidence that personal injury was caused by an accident arising out of and in the course of his employment.

5. A plaintiff in a workmen's compensation action is entitled to recover an award if he has shown by a preponderance of the evidence that he has sustained injury resulting from an accident arising out of and in the course of his employment even if preexisting disability combined to produce his disability.

Kennedy, Holland, DeLacy & Svoboda, Omaha, Edwin Cassem, Omaha, for appellant.

William Comstock, Charles A. Nye, Schall, Robinson, Hruska & Garvey, all of Omaha, for appellee.

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

YEAGER, Justice.

This case was previously considered by this court in 152 Neb. 622, 41 N.W.2d 911, and on the record as at that time presented it was held that the merits of the case could not be determined since the defendant and appellant had consented to the overruling of the motion for new trial. The ruling on the motion for new trial presented the only question for review, if any was presented.

By leave of this court the appellant was permitted to present to this court a supplemental transcript. This supplemental transcript discloses a nunc pro tunc order of the district court which shows that the defendant did not consent to the overruling of the motion for new trial but that it was regularly ruled on adversely to the defendant.

Under the circumstances the decision contained in the former opinion is hereby withdrawn and the case will now be considered on its merits.

This is an action by Kelley W. Tucker, plaintiff and appellee, against Paxton & Gallagher Company, a corporation, defendant and appellant, to recover under the Workmen's Compensation Act for alleged accidental injuries sustained by plaintiff on May 17, 1948, while he was engaged as an employee of the defendant. A judge of the workmen's compensation court, on hearing, dismissed the action. From the dismissal an appeal was taken to the district court where a trial was had. In the district court an award was rendered in favor of plaintiff for $18 a week for 55 weeks for temporary total disability and for $201.20 for medical and hospital expense. From this award the defendant has appealed.

The only question presented by the appeal is that of whether or not the plaintiff sustained an accident which produced the disabilities of which he has complained. The propriety of the amount of the award in the event that it is found that the plaintiff sustained a compensable injury is not brought into question.

In approaching a determination of the questions involved in this appeal it is to be borne in mind that the function of this court is to consider the case de novo unless it be concluded that the findings of fact are conclusively supported by the evidence as disclosed by the record. Section 48-185, R.S.1943; Werner v. Nebraska Power Co., 149 Neb. 408, 31 N.W.2d 315; Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212.

An examination discloses that the findings of fact may not be said to be conclusively supported by the evidence. In substantial particulars competent and material evidence is sharply conflicting. It has therefore become necessary to consider the case de novo on the record.

The evidence discloses that the plaintiff was first employed by the defendant on August 6, 1947. He was continuously employed from that date until May 17, 1948, except for periods when he was away on account of illness. He had no regular type of employment but his work over the entire period was in the coffee warehouse. On March 29, 1948, he entered a hospital on account of a kidney infection. He remained there until April 12, 1948, when he went home. He stayed at home for a week and then on April 19, 1948, returned to work. On May 10, 1948, he got sick and went home. He returned to work on May 14, 1948. As to this phase of the evidence there is no dispute.

The plaintiff testified that at about 8:30 a. m. on May 17, 1948, he was engaged in dumping paper sacks of empty coffee cans into a conveyor. A sack such as he was handling at the time contains 140 cans and weighs from 50 to 60 pounds. The bag which he was lifting broke or tore. He grabbed the bag to keep it from falling apart and at that time he had a terribe pain. At different points in the record it is indicated that the pain was in his hip, back, and legs. He dropped to his knees and was unable to arise. He went or was taken to another floor of the building. From there he was taken in an ambulance to the hospital. This evidence is not directly disputed or by reasonable inference counteracted. It must therefore be accepted as true.

The plaintiff contends that this evidence constitutes proof of an accident within the definition of the term by the Workmen's Compensation Act as follows: 'The word 'accident' as used in this 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.' Section 48-151, R.S.Supp., 1949.

It must be said that this evidence of the plaintiff satisfies the statutory requirements of the definition of an accident.

As pointed out the evidence of the defendant does not in anywise dispute or counteract the evidence of accident. Its substantial contention, when analyzed, is not that there was no accident but that the finding of compensatory injury is not sustained by the evidence. It relies for support of its position upon its own evidence, claimed inconsistency in the evidence of plaintiff, and claimed contradictory statements made before the trial which statements were adduced in evidence at the trial.

As to the question of whether or not plaintiff sustained the injury complained of in consequence of the accident he testified, in addition to what has already been summarized, that he remained in the hospital for about 12 days under the care of Dr. Dendinger and that he was examined by a specialist; that he received heat treatments and shots for pain; that after 12 days he went home and to bed for about a month; that at home he received treatments on his back; that after about a month he went to see his doctor and the specialist who saw him at the hospital; that he started wearing a brace in September which he was still wearing at the time of the trial; that treatments were continued at the office of the doctor; that he had continuous severe pain in his legs and back from May 17, 1948, until about January 1949 when he went to the Creighton University Medical Clinic where he became a patient in charge of an orthopedic surgeon; that after examination and X-rays this surgeon on January 31, 1949, performed a surgical operation on his back; that he left the hospital and went home about February 15, 1949; that since the operation he has numbness in the left leg from the knee down and the left foot; that he does not have a lot of pain but has some across his hip; and that at the time of the trial he was still unable to work. In his testimony he gave a history of having been hospitalized on March 29, 1948, for prostate trouble and a kidney infection and that he returned to work April 19. He was home sick on May 10, 1948, and away from work until May 14. He had poliomyelitis in 1939, but appears to have satisfactorily recovered from that disease. Other incidents relating to the health of plaintiff were testified to by him but the relation of them is not deemed important.

The orthopedic surgeon referred to testified that the plaintiff came under his charge on January 15, 1949; that plaintiff exhibited symptoms of severe pain in his back radiating down his left leg; that he made a thorough examination of and applied certain tests to plaintiff; that he obtained a history of his condition from plaintiff and had detailed to him the accident which has been described; and that in the light of these things he found a deformity in the spinal cord and diagnosed the condition as a herniated disc.

This surgeon testified that on January 31, 1949, he operated on plaintiff and that in the space between the fourth and fifth lumbar vertebrae he found and removed a small disc. In the space below this point he found bone protuberances which were curetted.

The doctor gave it as his opinion...