22 N.W.2d 565 | Neb. | 1946
This is an action by the plaintiff, Ray Evans, to recover benefits from the city of Lincoln under the Fireman’s Pension Act in effect prior to 1943 (§§ 2439 to 2442, inclusive, Comp. St. 1922). The jury returned a verdict for $3,085.02 and judgment was entered thereon. The city appeals.
The record shows that plaintiff was employed as a fireman for the city of Lincoln from May 1, 1922, until July
There is evidence in the record establishing that plaintiff had a slight limp. prior to July 9, 1941, and that he had a limitation of motion in his right knee. Plaintiffs evidence is that he injured his right knee when struck by a hose nozzle during a drill in 1932. He had passed medical examinations on several occasions before July 9, 1941, testing his fitness as a fireman. He says that his leg never interfered with his work prior to July 9, 1941. This fact is corroborated by several other firemen who worked with him during that time. After July 9, 1941, the knee condition became progressively worse. At the time of the trial he could get around only with the assistance of a crutch or cane.
The plaintiff’s personal physician and a physician who qualified as a heart expert state that plaintiff is suffering from a coronary occlusion which occurred on July 9, 1941, and that he is now totally and permanently disabled. They testify to the symptoms evidenced at the fire on July 9, 1941, and the subsequent condition of the plaintiff as providing adequate proof of their statements. They also testify to the arthritic condition of the right knee and conclude that it was a traumatic arthritis and that the aggravation resulting from his fall on July 9, 1941, was the cause of the present condition of his right knee. The medical experts called by the city testify that plaintiff is suffering
The contention is advanced that plaintiff is not totally and permanently disabled within the meaning of the Firemen’s Pension Act. In this respect, total and permanent disability does not mean a state of utter helplessness. Generally speaking, a fireman is totally and permanently disabled under this statute when the disability from which he suffers renders him permanently unable to obtain, hold, or do any substantial amount of remunerative work, either in his previous occupation, or in any established and recognized field of employment for which he is fitted. Total disability contemplates the loss of earning power. In measuring the loss of earning power the following elements are to be considered: Ability to earn wages, eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work in which a person is engaged. The trial court instructed substantially in this language. The evidence shows that plaintiff was fitted to perform the work of a fireman and of a farmer. We think the evidence is sufficient to sustain the finding of the jury that plaintiff was totally and permanently disabled from performing the work of either.
Defendant contends that the trial court erred in its definition of the words “in line of duty” contained in the statute. The pertinent part of the instruction was as follows: “The disability contemplated by such (pension) act does not mean a fireman must suffer an accident or some violent
The applicable portion of the statute is: “In case any fireman * * * shall become permanently and totally disabled from accident or other cause, while in the line of his duty, such fireman shall forthwith be placed upon the roll of pensioned fireman, * * * .” § 2441, Comp. St. 1922. As we recently said in Mook v. City of Lincoln, 146 Neb. 779, 21 N. W. 2d 743: “The alternatives are clear. The pension is to be paid if death occurs while in the line of duty. Likewise, if death is caused by or is the result of injuries received while in the line of duty, then the pension is to be paid.” The rule is the same in the case of permanent and total disability as in a death case. The words “in line of duty” mean “in the discharge of duty.” Allen v. Burlington, C. R. & N. Ry. Co., 57 Iowa 623, 11 N. W. 614. That the evidence is sufficient to sustain a verdict that plaintiff became permanently and totally disabled in line of duty is amply supported by the case of Elliott v. City of Omaha, 109 Neb. 478, 191 N. W. 653. See, also, Wessel v. City of Lincoln, 145 Neb. 357, 16 N. W. 2d 476.
We think the instructions of the court correctly and fairly presented the case to the jury. The evidence when supplemented by the expert medical testimony was such that the jury could properly find that plaintiff was totally and permanently disabled and that he became disabled in
Affirmed.