127 Neb. 34 | Neb. | 1934
This is an action to recover compensation under the workmen’s compensation act. It is based upon the claim that plaintiff’s husband, an employee of the defendant company, sustained injuries in an accident occurring to him in the course of and growing out of his employment, and that disability and his death following were caused or contributed to by such injuries. The defendant and its insurance carrier contend that both disability and death ensuing were due solely to the disease of acute lymphatic leukemia. The trial in the district court resulted in a judgment denying plaintiff’s claim and dismissing her action, and she appeals.
Workmen’s compensation cases are now heard and de
In order that plaintiff may recover under the workmen’s compensation law for accidental death of an employee, the burden of proof is upon her to show with reasonable certainty that the death of such employee was proximately caused by injuries resulting from an accident arising out of and in the course of his employment. Omaha & C. B. Street B. Co. v. Johnson, 109 Neb. 526.
But claimant’s case may be established by circumstantial evidence, and is required to be proved only by a preponderance of the evidence. Supica v. Armour & Co., 131 Kan. 756; Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130; Hogan v. Twin City Amusement Trust Estate, 155 Minn. 199; Flint v. City of Eldon, 191 Ia. 845.
William R. Kizer, husband of plaintiff, at the time of his death was 59 years of age, and had been continuously in the employment of the Beatrice Creamery Company since October, 1905. He was a carpenter and general repair man by trade, and the shop in which he worked was located on the second story of the plant of the Beatrice Creamery Company in Lincoln, Nebraska. He was under the supervision of Ed Spirk, chief engineer of that company. Until December, 1930, his general health had been good. True, twenty years before his death he had had an attack of rheumatism which continued for about two months, during which time he took treatment for it at Excelsior Springs, Missouri, but from that disease he had completely recovered. However, he had developed varicose veins in both of his legs, which condition had prevailed for several years and was quite noticeable below the knees.
A chronology of the important developments immediately preceding the death of Mr. Kizer would embrace the following:
From these various sources of information Doctors Covey, Reinhard, Welch, and Everett, who appeared as defendant’s witnesses, testified positively that the death of deceased was caused by acute lymphatic leukemia. (Doctors Reinhard and Welch may also be classed as the attending physicians during the illness of deceased.)
Without setting forth the evidence of these witnesses at length, it may be said that it amply sustains the conclusion that there is no proof of any relationship whatever between the trauma and acute lymphatic leukemia of which deceased died; further, that medical authorities are unanimous in the opinion that there is no relationship between the two either in causing acute lymphatic leukemia or aggravating it, or in joining with an injury in any way whatsoever to produce death; in short, that the bruise on the calf of deceased’s left leg, received on January 12, 1931, in no manner caused or contributed to the death of Mr. Kizer on January 27, 1931. Thus their evidence affirmatively establishes as a fact that the accident
We have carefully considered the conflicting views of Dr. Smith, as introduced in evidence by the appellant, not only in connection with the views of opposing experts, but also in the light of the cogent facts and circumstances set forth in the record. This doctor’s evidence was that of an expert only. He had personally never met, examined, nor treated the deceased. The ultimate cause of death, acute lymphatic leukemia, we find practically agreed to by all of the medical witnesses. They differ in fact only on the question of whether the trauma occasioned by the accident of January Í2, 1931, was a contributing cause in the death that resulted on January 27 following. On this point Dr. Smith, in disagreement with the other expert witnesses, expresses the affirmative opinion. In view of all the facts and circumstances shown in the record, we are unable to accept this view.
We find that the plaintiff has failed to meet the burden of proof imposed upon her by the determining issues involved in this case. It follows that the judgment of the district court is right, and is
Affirmed.