Watkins v. Brunswick Restaurant Company
| Decision Date | 06 May 1932 |
| Docket Number | 28248 |
| Citation | 242 N.W. 439,123 Neb. 212 |
| Parties | DOLL WATKINS, APPELLEE, v. BRUNSWICK RESTAURANT COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK L. SPEAR JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where a restaurant employee fell and injured her right side in the course of her employment, thereby necessitating the removal of her appendix four days thereafter, and the evidence sustains the finding that the fall caused the appendicitis, held, that such injury is compensable under the provisions of the Workmen's Compensation Act.
2. The evidence of a plaintiff's physician, based upon observation and an examination of the plaintiff and upon the assumption of the truth of the evidentiary facts, is admissible.
Appeal from District Court, Dodge County; Spear, Judge.
Proceedings under the Workmen's Compensation Act by Mrs. Doll Watkins against the Brunswick Restaurant, a copartnership, consisting of Charles Hawley and another, employers, and the Employers' Mutual Insurance Company of Des Moines, Iowa, insurer. From a judgment of the district court affirming an order of the compensation commissioner awarding compensation to the claimant, the insurer appeals.
Affirmed.
Rosewater, Mecham, Burton, Hasselquist & Chew, for appellant.
Robins, Yost & Lamme, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge.
On or about December 14, 1930, Mrs. Doll Watkins was in the employ of the defendant, Brunswick Restaurant Company, of Fremont, as a waitress and, while in the course of her employment, she fell and injured her right side thereby necessitating the removal of her appendix four days thereafter. The defendant company appealed to the district court for Dodge county from an order of the compensation commissioner awarding the plaintiff compensation for her injuries. The judgment was affirmed and the district court decreed that for six weeks, commencing December 14, 1930, the plaintiff should receive from the defendant $ 9 a week, and hospital and medical expenses, and $ 50 as attorney's fees. The defendant company has appealed.
The accident occurred when the plaintiff was standing on a table in the restaurant so that she might reach the overhead shelves. And while in this position, she grasped a board which became loosened and she fell backward striking her right side on a table. Two days passed before the plaintiff consulted a physician and upon his advice she rested for several days. But when she returned to work she was compelled to stop within an hour on account of her injury. And her appendix was removed by two physicians that evening.
One of the physicians testified that the plaintiff's appendix was "red and inflamed, more so at the tip." And in answer to a hypothetical question as to whether the attack of appendicitis could have been caused by the fall, this physician made this general statement: "The opinion I have would be that she may have had a diseased appendix, and if she did, having received the blow of that kind might light up this appendix." He testified that the fall may have aggravated the plaintiff's condition at the time. And the other physician who was present when the plaintiff was operated upon testified that her lower right abdomen was tender and somewhat rigid as compared with the left. In his opinion, "trauma can cause an appendix that has had previous trouble to flare up," and he testified that the injury received by the plaintiff aggravated her condition and caused an attack of subacute appendicitis.
On the part of the defendant, and as grounds for reversal, it is contended that the plaintiff's fall was not the proximate cause of the appendicitis attack, and that the court erred in finding that she sustained an injury arising out of and in the course of her employment that was compensable within the provisions of the workmen's compensation act. And, in behalf of the defendant, two physicians testified that they had never seen a case of traumatic appendicitis, or appendicitis caused directly by an injury. In the opinions of these physicians, there was nothing in the evidence indicating that the plaintiff had suffered traumatic appendicitis.
The defendant also argues that the expert opinion of a physician, based upon the history of the case submitted to him by the patient, is not admissible in evidence. The history of the case may be considered so far as it relates to the treatment of a patient based upon complaints made to the physician at the time. In the present case, the plaintiff's physicians stated the history of the case, as related to them by the plaintiff, and they gave their conclusions based upon an examination of her. But the testimony and opinions of these physicians depended upon the assumption of the truth of the evidentiary facts in respect of the accident as...
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