*1
E.
E.
Betty
Friedeman,
widower
of
Elden
individually
Friedeman,
and as next
friend
and Doreen
Rae
Friedeman
David
Earl
Nebraska,
Friedeman,
v. State
appellee,
appellant.
Developmental
Center,
Beatrice
Representative
Friedeman,
Personal
Elden
E.
Betty
deceased,
Friedeman,
E.
Estate
v. State
appellee,
Beatrice
Nebraska,
appellant.
Developmental
Center,
Herbert appellee. for *2 C.J.,
Krivosha, Hastings, White, Boslaugh, JJ., and D.J. and Grant, Shanahan, Cafórale, J. White, by appeal State of Nebraska from This is an three-judge Compen- the decision of the Workmen’s judgment of the Court which reversed a sation single-judge three-judge court deter- court. compensable in- suffered a mined that jury totally disabled until her death her and was companion case, own hand. gether, In the submitted to- judgment appeals of the the State from the holding compensation court, and widower next kin were entitled to death benefits on account held arose out of decedent’s which court employment her at the Be- of and the course of Developmental Center, and that dece- atrice State “willfully negligent” procuring dent her own death. (1) assigns
The State as error: That the evi- support finding that the decedent dence does not period temporarily totally disabled for a (2) failing weeks; In to find that the dece- V? negligence,” barring thus dent’s suicide was “willful (3) recovery any benefits; In for death-related find- ing of the decedent arose out of and in death (4) employment; admitting and In the course of her affirm. into evidence a suicide note. We necéssary. A the facts is detailed recitation of decedent) (hereafter Betty was, on E. Friedeman years September 1, 1977, a married woman of day, age and the mother of four children. On that employed while as an attendant Beatrice Developmental Center, an institution for the State training mentally housing, retarded, care, she suffered an at- injury to her lower back while a tempting patient. restrain Decedent was treated an two orthopedic surgeon, undergoing and a She was ex- myelograms laminectomy. amined two neurologists ultimately psychia- All trists. treatment was apparently unavailing. Decedent’s husband and two of her children tes- tified. to their the decedent According testimony, active, a healthy, and indus- vigorous, friendly, trious woman prior to the accident of September 1977; farm; she did chores around the she was al- ways on the she go; enjoyed her children and had an active, normal with her relationship husband. After the accident she was a completely changed person. husband, Her daughter, and son each testified that she chronically complained pain had diffi- cult time moving around. She had trouble climbing stairs, walking, She sleeping. would walk the floor at night because of the in her pain back. Dur- *3 ing day, she most spent of her time lounging on a couch, walk, stand, because it hurt her to to and to and, sit. She stopped doing housework for the most part, was a mere shadow of her former self.
The decedent worked from the time of the 12, 1977, to up September and was off work until Oc- 30, tober 1977. She started again in October working 15, 1978, and worked till up May when she had her operation. 9,
In the 1981, early morning of March decedent took an overdose of drugs vodka, and a half bottle of left note, a poignant suicide and died. The note forgive stated as follows: “Dear Please Family: Ime. just cannot stand the I pain any longer. have been about thinking this for the doing year last or more.
“Please do not feel bad because I I hope will have no more pain.
“I you love all very much.
“But you have your lives and I cannot mine live day after in day pain. all you my I loved all with remember
“Always Betty.” & “Mom Signed: heart.” Dr. Harlan indi- Papenfuss autopsy reports death suicide. cate Eli both testified Dr. Chesen
Dr. Bruce Miller and testified that decedent was in Dr. Miller person. depressed. to be consistently appeared pain Fisher, Dr. a psychologist, her He had referred Chesen, psychia- and Eli Drs. Robert Osborne trists, Dr. psychological depression. because of her disabled totally testified decedent was that Miller the Beatrice returning employment to her from 1978, 15, from May Center Developmental State time of up until her time of the second operation, death, March 1981. Chesen,
Dr. who saw decedent approximately opinion in his before her testified that weeks the back pain, of death was caused the cause Dr. which her to commit suicide. injury, drove stated she was not but psychotic Chesen her make a decision to end life. she did conscious that, both He stated on direct and cross-examination lucid, beyond she the suicide was her although was voluntary. control as Dr. Chesen testified fol- On direct examination “THE It after my opinion lows: WITNESS: note, my suicide reviewing autopsy, notes, life she had taken her own or previous to the from which she was response pain suicided Friedman) Q. you, And do suffering. (By Mr. upon have an based a reasonable de- again, opinion certainty of medical as to what was cause gree . . . of her suicide? A. Yes. THE WITNESS: It my opinion the suicide was caused or was a *4 situation, the In I felt to ... this that response pain. while there elements here certainly depressive were not my that in the depression, opinion, least cause of this but rather the primary tragic event Again, from which this woman pain suffering. reasons, suicide people large variety depres- for a of one, them, sion of only one and ex- being possibly a plaining only Q. of them minority even. Based on her, the that from do history you you took have an to opinion as what the Q. caused A. Yes. pain? And what’s that? A. ... After the medi- reviewing cal and just records all the data given that I had to on, interview, go my and inclusive of I feel that with a reasonable degree of medical the certainty pain was caused the that Mrs. Friedeman then, had Q. suffered previously. And this the suicide, a your opinion, direct result of A. that? Doctor, Q. Yes. in your opinion, was Mrs. Friede- man really able to control herself the of a sense decision to take her . . . life? THE I WITNESS: on, think based based on of again, all the informa- tion, including the information subsequent to my examination, this was beyond her control.”
In discussing the assignments of error we apply the standard of findings Com- Workmen’s pensation Court on rehearing have the same force and and, effect as jury verdict if supported by suf- evidence, ficient will be disturbed on un- appeal Airlines, less clearly wrong. Caradori v. Frontier (1983). 213 Neb. N.W.2d The first of assignment error is clearly without merit. There evidence the decedent suffered an accident arising out and in the course of her employment; that, that she incurred an injury; ex- cept for a short period reemployment, she was death; totally to disabled the date of her and that pain depression were to causally connected accident based on a injury, reasonable medical certainty. State’s are arguments directed to weight evidence to credibility witnesses, that was something within the province compensation court weigh consider. We will not re again weigh facts.
We will discuss the two next assignments together. The threshold question underlying consideration the assigned errors is whether ab- suicide
[418] bene- receiving from a survivor solutely disqualifies compensation workmen’s Nebraska fits under it does. have said previously We law. Inc., Sons, 186 Neb. & L. Brandeis v. J. In Hannon (1970), issue was whether 122, 253 at N.W.2d 181 structure, thereby parking from a leaped decedent suicide, in the absence whether or committing against contrary presumption to proof to were entitled and the survivors applied suicide court, the burden determining benefits. natural ob to a prove on the survivors who is employee in passing “[a]n served almost the work recover under cannot willfully negligent 48-101, R. R. S. 1943. An law. compensation men’s § willfully negligent who commits suicide Hannon, the act.” meaning supra within 126, 256. N.W.2d at 181 view in minority to be a distinct appears
Since this States, that we reex- requires prudence the United if we should continue issue to determine amine and the survivors have to it. The State to adhere briefs on this sub- with comprehensive furnished us ject. has as a death
The status of suicide work-related An ex- litigation. of considerable subject been the in 1A A. Lar- subject of the is had tensive discussion son, et Compensation 36.10 The Law Workmen’s § (1979). seq. L. & not cited in Hannon v. J. Brandeis
Although Inc., Sons, the Hannon supra, the decision court be in with the rule set agreement would seem to 530, Case, 526, 220 Mass. Sponatski’s forth 466, (1915): rests upon 467-68 “This decision N.E. York, New the rule established in Daniels v. New Haven, Railroad, & supra Mass. [183 Hartford (1903)]. That to cases applies 67 N.E. rule It act. compensation under the workmen’s arising of a is that where there follows as the direct result of such violence as physical insanity an cause the victim to take his life an un- through impulse frenzy controllable in a or delirium of ‘with- produce death, [without] out conscious volition to having knowledge physical of the nature conse- quences act,’ then there is a direct and un- physical broken causal connection between the in- jury resulting insanity and the death. But where the through voluntary is such as to cause suicide a wilful by moderately intelligent choice determined men- power purpose physical *6 tal which knows the and the though of the effect suicidal act even choice is domi- mind, nated and ruled a disordered then there is independent agency a new and which breaks the arising injury.” chain of causation from the §36.21 As Larson observes at 6-121: ‘‘Armed plunged murky formula, with this courts into the depths every conceivable kind of broken and anguished up mind, and tried to come with the cases compensable according not, classified as or to through whether the killed himself a insane) voluntary (though through choice or a de- impulse.” lirious
Sponatski two-part test, then is a whether the sui- impulse cide was the result of an uncontrollable accomplished knowledge without conscious physical consequences. the Under this doctrine the argues, State agree, and the survivors seem to recovery for barred, decedent’s death would be as quite the evidence was clear that the decedent was knowing lucid, physical consequences thus would result. §
Larson at 36.22 at 6-123 attacks the inclusion of prong the second in a determination of causation: abundantly ‘‘It is evident that the second element is insanity traceable to the criminal law test of M’Naghten’s Case. But there is a decisive dif- ‘insanity’.in ference between the role of criminal law compensation murder cases and in workmen’s argued suicide cases. It can well be in a criminal understanding case that the accused’s is a crucial element, necessary since it is to the establishment of compensa- But in intent. or criminal mens rea only legal defense, is causa- issue
tion suicide will, depends not on on the tion, understanding. that in turn upon injury the will so acts If the independently operating at the time it is not clear, is suicide, of causation then the chain intervening independent cause. no there is since physical conse- knew the the decedent Whether ques- utterly quences this irrelevant to of his act words, Using SponatskVs if tion of causation. the pulse literally injury produced im- uncontrollable theory suicide, demand how can causation to if as a result the decedent more? Postulate injury im- an uncontrollable [sic] driven his perfectly produce pulse well he understood what say physical To that such an act death. was his own defy independent causally is to meaning plain of words.” appears 36.22, that, § it Larson at
As discussed years only Sponatski, in the last 25 one case since physical knowledge conse- used the has recovery. quences Zimmiski v. test to defeat Lehigh Super. al., et 200 Pa. Coal Co. Val. (1963). Sponatski rule has itself been *7 The A.2d 897 reversed
legislatively.
370, §
ch.
2.
1937 Mass. Acts
forth
the New York
A
test was set
second
Co.,
v. Nat. Biscuit
in Matter
Delinousha
courts
(1928):
injury
“[I]f
93, 94,
an
The third known as test, its if the con- recovery would allow to lose directly employee caused sequences normal and to be dominated a mental judgment Larson, supra 36.30. disturbance. § (Reissue 1978) bars Our Neb. Rev. Stat. 48-101 § recovery “willfully if the negligent.” In willfully Was the act of the decedent negligent? Fox, (Del. Delaware v. Tire Center 411 A.2d 1980), the court commented on “willful intention.” “Common demonstrates effect of experience serious injury, and the pain, depression despair, them, medications for can influence prescribed will, one’s and override one’s to the end thinking suicide, undertaken with though knowledge its nature consequences, is not an act of the free will but rather a direct product incapacity. This influential effect should be in our recognized law, Workmen’s Compensation remedial statute with a benevolent purpose long subject to liberal construction.”
Florida also has a bars statutory provision which recovery if the injury was a result of the employee’s willful intention kill injure or himself. In con- struing meaning “willful intention” the Su- preme Court of Florida stated: in- difficulty “The herent that one proving who kills himself his own hand does so injuries because of sustained in an accident, and as a direct result proximate thereof, undoubtedly accounts for diversity opinion on this question this among courts of And, country. case, in a clearly, proper the provi- 440.09(3), sions of Section should be full supra, given force and effect so that industry should not have to carry burden for a death for compensating which it was in no wise But we are responsible. knew persuaded the fact that a workman will, he was himself a inflicting upon mortal wound cases, m all amount to a ‘wilful intention’ to kill him- self, within the of the statute. We believe meaning *8 that in those cases where the suffered the injuries by of normal devoid becoming result in his
deceased of mind a disturbance by and dominated judgment consequences, injury his and its caused directly the ‘wilful’ within his suicide cannot be considered intent of the Act. and meaning propounded the argument, “There is no force to courts, independ- act of suicide is an that the some workman, the of the death of ent cause intervening the injury of causation from the chain breaking thus in- it be an may the While to the death of deceased. cases, it is cer- in some intervening cause dependent where the incontro- so in those cases tainly not that, the injury, without evidence shows vertible suicide; no that the suicide have been there would the injury between intervening an act merely death, of of an unbroken chain part the not a cause from the injury events death.” White- intervening between (Fla. Co., 2d Roofing 43 So. head v. Keene 1949). of testimony
We are of the that scientific opinion will, ex- to the a person’s factors that can override consequences knowledge tent that even from taking the act prevent of suicide do not the act the act to demonstrate are admissible place, testimony direct Such was the was not willful. is an act which elementary Dr. Chesen. It are further We is also not willful. voluntary holds that that Hannon to the extent persuaded neg- willful constitutes act of suicide nonvoluntary it be overruled. should ligence, reception with the deals assignment The last was admis- The evidence in evidence. suicide note body time the at the The note was found sible. within the decedent and was written discovered testified Dr. Chesen her death. 24 hours of his con- opinion forming was relevant declaration it the time of mind state decedent’s cerning of death. and as to cause written Illinois, faced with a when Court Supreme
423
note
held that a suicide
also
question,
similar
state-of-mind
of present
a declaration
admissible
as
Industrial
v.
City
Streator
hearsay rule.
to the
exception
of
(1982).
353,
m.,
The judgment $1,250 attor- is allowed Counsel Court is affirmed. in this court. fee for services ney
Affirmed. Boslaugh, J., dissents.
Caporale,
J., dissenting.
that
of the
portion
dissent
from
respectfully
I must
J. L. Brandeis &
Hannon v.
which overrules
opinion
(1970),
Inc.,
122,
N.W.2d 253
Sons,
186 Neb.
award of benefits
court’s
compensation
affirms
of the de
next of kin on account
to the widower and
so I ac
doing
her
hand.
In
cedent’s death
rationale
is well rea
that
knowledge
majority’s
authority. My
by respectable
soned and is supported
the question pre
arises
from the fact
problem
impression.
sented is not one of first
(Reissue 1978)
as
Rev.
48-101
provides,
Neb.
Stat. §
Hannon,
is “will-
it did at the time of
that one who
not recover benefits under
fully negligent” may
observed
Act. Whether
Compensation
Workmen’s
otherwise,
or
the fact
remains
“almost
passing”
ruled,
dissenting
members
this court
with three
arise
question
on the
of what
should
presumptions
who
that an
unexplained
from an
With
“willfully negligent.”
commits
suicide
recovery
a bar
to the
suicide became
ruling,
the in-
benefits.
compensation
During
workmen’s
has elected
years,
Legislature
dozen
our
tervening
has
remain
unchanged
its
language
to let
thereby acquiesced in this court’s determination of
Advertising
Erspamer
Dept.
its intent.
Co. v.
(1983).
Labor,
214 Neb.
The nature of suicide has not in the years majority and, at least so far as the demon- understanding phenomenon strates, mankind’s markedly improved. only thing has not changed composition has is the of this court. That *10 respectfully alone, submit, circumstance I does not justify precedent. the abandonment of joins J., in this dissent.
Hastings, Ludwig Employers Thos, appellee, v. Mutual Casualty appellant. Company,