Opinion
No. 41985.
Filed February 13, 1979.
Workmen's Compensation: Evidence. A workmen's compensation award can not be based on possibility or speculation, but an ultimate fact fairly and reasonably inferable from facts and circumstances proved may be taken as established.
Appeal from the Nebraska Workmen's Compensation Court. Reversed and remanded.
Yost, Schafersman, Yost, Lamme Hillis, for appellant.
William M. Lamson, Jr., and John K. Green of Kennedy, Holland, DeLacy Svoboda, for appellee.
Heard before SPENCER, C. J., PRO TEM., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
Larry I. Fite was killed when his airplane crashed on Wednesday, July 2, 1975. This suit by his widow against his employer is before us for the second time on appeal from the Workmen's Compensation Court. In Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922, we reversed an evidentiary ruling of the compensation court and instructed it to admit without limitation three statements made by the decedent which came within the "declarations of intent" exception to the hearsay rule. That opinion contains a more detailed statement of the facts.
Upon remand, the Workmen's Compensation Court found that the plaintiff had not met her burden of showing that the decedent was acting within the scope of his employment at the time of his death. We find the evidence to the contrary to be so convincing that we do not hesitate to say that the findings of that court are clearly erroneous. This court has held that a workmen's compensation award cannot be based merely on possibility or speculation. See Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808. In the present case it appears, however, that the finding that decedent was not in the course of his employment is based on mere speculation.
The primary consideration leading to the decision of the compensation court was the fact that the crash site near the Greenwood Interchange of Interstate Highway No. 80 was not on a direct line from the decedent's takeoff point in Fremont to either Lincoln or Omaha, his two announced business destinations.
The deviation, however, was small. The decedent had made separate statements on the morning of the crash to his wife, his father, and a neighbor to the effect that he was on his way to work. He used the airplane rarely for pleasure and regularly for business. He was a salesman-serviceman for the defendant in a large territory. As is typical of similar jobs, he had substantial freedom from supervision in arranging day-to-day work activities. He was to notify his superior if he would be taking time off. He had notified his superior that he was going to take a vacation over the weekend immediately preceding his death; however, there was no such indication that he would be taking time off on the date of his death. His superior testified that the decedent would work 10-hour days, 5 to 6 days a week. He had business appointments in both Omaha and Lincoln either on or near the date of his death.
What was said in Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N.W. 89, is almost directly applicable: "`An ultimate fact, fairly and reasonably inferable from facts and circumstances proved, may be taken as established.' Struve v. City of Fremont, 125 Neb. 463.
"The employment, the nature of the employee's duties, the salary, the accident and resulting death are shown without dispute. The employee was not a day laborer with regular hours in an industrial plant. He was a division superintendent; had three detail men under him in the Omaha office; was required to travel; called at all the jobbing places in Nebraska; * * * At his home in Omaha, on the evening of the accident, he said goodbye to his wife and stated he was going to Lincoln. * * * Later, the same evening, he called his wife by telephone and said: `Well, goodbye, I am going now.' * * * Evidence of these facts is undisputed. There is nothing in the record to indicate he started to Lincoln for his own pleasure or business. If he started on the business of his employer and was accidentally injured on the way, deviation from the most direct route, if implied from circumstances, would not necessarily defeat a recovery. Keebler v. Harris, 120 Neb. 739. It may fairly and reasonably be inferred from competent evidence not contradicted that the employee was injured on his way to Lincoln and that the fatal accident arose out of and in the course of his employment, within the meaning of the workmen's compensation law * * *." (Emphasis supplied.)
Without the possibility of testimony of the decedent, the evidence that he was in the course of his employment at the time of his death, though circumstantial, is convincing. The decision of the Workmen's Compensation Court is reversed and remanded.
REVERSED AND REMANDED.