dissenting.
I respectfully dissent from the opinion adopted by the majority of the court.
This action is brought by the widow of a city fireman against the city of Lincoln and the Travelers Insurance Company, its compensation carrier. There was a hearing before Judge Frank M. Coffey, of the compensation court, and the widow was allowed $15 a week for a period of 325 weeks and $150 funeral benefit. There was then a hearing before the full compensation court, and the same award was affirmed. The defendants then appealed to the district court, and Honorable Frederick E. Shepherd, district judge, affirmed the same award which had been made twice before, and added the sum of $100 as attorney’s fee for the plaintiff’s attorney.
We have held that “On appeal from the district court to the supreme court in a workmen’s compensation case, findings of fact supported by sufficient evidence and findings of fact on substantially conflicting evidence will not be reversed unless clearly wrong.” City of Fremont v. Lea, 115 Neb. 565, 213 N. W. 820. See, also, Lange v Department of Roads and Irrigation, 141 Neb. 167, 3 N. W. (2d) 194; Pillard v. Lincoln Packing Co., 133 Neb. 898, 277 N. W. 587. Therefore, if this court reverses this award in the case at *265bar, the court must find that the result was clearly wrong.
The defendants have brought this case to this court on' the theory that the deceased suffered no accident at all, but just happened to have a fatal heart attack while up on the icy roof vigorously fighting this fire.
It will be necessary to refer to the ladders used at this fire. The main ladder extended from the ground up to the eaves of the main roof and a few rungs beyond the main roof, and the deceased was standing near the top of this ladder, or on the boards of the roof where the shingles had been torn off, or perhaps with one foot on a round of this main ladder above the roof, or he might have been leaning against it. The kitchen ladder extended from the ground to the eaves of the kitchen at the rear of the cottage, which was a li/2-story building. This short ladder to the kitchen roof brought up the large water hose, which was fastened to it, then went over to the main roof of the house. The third ladder was called a roof ladder, and was laid flat upon the roof of the main house, and hooked over the ridge of the house.
Defendants rely upon the testimony of fireman Keller, who they state was entirely honest, and if the plaintiff had not called him as a witness the defendants would have called him to testify. There were just the two firemen, Keller and the deceased, up on the roof at the moment of the accident. Keller says he was talking with the deceased a little bit before, and he was standing on the roof, and then Keller turned around and started pulling shingles, off the roof of the dormer, with his back to deceased, and then he heard the deceased say, “Oh, gee,” and when he turned around and looked the deceased was in mid-air, with his hands outstretched, but he did not see him start to fall, for when he first saw him after he turned around the body of the deceased was entirely over the edge of the roof, falling to the kitchen roof. He testified that the deceased fell 4^ or 5 feet to where he hit the kitchen roof; that there was smoke that would “make you cough,” and steam coming up around them at the time he fell. He said he did not see how the *266deceased hit on the kitchen roof, as that was over the edge of the house.
Reverend J. Edwin Jarboe testified that he is a minister, and resided in the next house east, the houses being 18 or 20 feet apart, with a driveway between; that he had been speaking at the City Mission that night, and drove up the alley and in from the back, leaving the headlights on his car burning, which lighted up the yard and the house where the fire was; that he went right in the house and went into his study, where the folks were standing by a large window looking out; that his wife and his daughter-in-law and his wife’s mother were there, and this large window of his study was directly east of the place on the roof where these men were working. It was freezing weather, and he had seen firemen throw water up on the roof before the fireman fell, and the roof was pretty icy and wet. He described the ladder at the back of the kitchen and the long ladder going up to the main roof, and saw the two firemen digging away at shingles. He testified that the man who fell was working down below the other man. One was working rather toward the top of a dormer window, and the man who fell was pretty well down. He “was kind of laying on the ladder and working away with his hands” at the shingles. The roof of the main part was a very steep roof, and as the deceased was working by the side of the dormer window several of them in the room said, “That ladder is falling,” and as he started to fall it seemed like he lost his balance on the ladder, and he rolled off onto the other roof. As the ladder started sliding and went to the edge of the roof, Reverend Jarboe saw him throw out his hands like he wanted to catch onto the edge, trying to catch himself. It just appeared as if he was clutching to get hold of something. When he came down he lit on his head and shoulders on the kitchen roof and then rolled down to the edge of the roof. Reverend Jarboe said he followed them into the house as they took him in, and saw that his face was bruised, and there was some blood.
Mrs. J. Edwin Jarboe testified that she was standing in *267their study window, looking directly across at the other roof, which looked icy. She said: “All at once I saw the ladder begin to slip. The man was on the ladder, * * * and he tried to catch himself * * * with his arms. The ladder fell and caught on the hose line which was lying along the edge of the roof.” On cross-examination she testified this main ladder slid about to the edge of the main roof. She testified that there was plenty of light, for the light from the study window shone directly out, and she had turned her porch light on, and that Reverend Jarboe had left the car lights on, shooting the lights toward the house, and it was very plain to see what was going on around there.
The death certificate, signed by Max G. Towle as county coroner, dated after the autopsy was held, stated, “Real cause of death unknown.”
Defendants’ medical expert was asked the question, “Is it your opinion, then, that he was dead before he hit the second roof in falling from the upper to the lower?” and his answer was, “It would be my opinion from my findings.”
Two high school boys were standing in the driveway in front of the Jarboes’ window. Their attention was attracted when the long ladder slipped just a little ways to the south, but not over on the kitchen roof. They saw deceased put out his hand to grab the south edge of the roof, and Fred Langenheim said he lit on the left side of his face and neck and shoulder. Don Singleton said when they were carrying him inside the upper part of his cheek was red and blood was just starting to come. He testified that deceased grabbed at the ladder with his left arm and hand; “he missed it or he would have got himself steady.”
The plaintiff called Dr. George E. Lewis, who had examined the deceased for life insurance in August, 1940. He said he examined his heart action by stethoscope on his bare chest, took his pulse and blood pressure, and found his heart to be normal at that time.
In answer to a long hypothetical question, detailing all the occurrences leading up to the death of Mr. Mook, he *268testified “That the injuries he sustained from the fall directly or indirectly caused Mr. Mook’s death.”
The medical expert called by the plaintiff testified, in answer to a long hypothetical question, that in his opinion death was caused by a concussion of the brain, brought about by the fall.
He was then asked this question: “From the facts as given to you in the hypothetical question, do you think it was possible for this man to have been dead before he hit the lower roof?” and the answer is, “No, he could not have been dead,, for two reasons. One is that he made definite grabs at protruding objects, and the other is the (fire) chief decided his heart was beating, still beating, for fifteen minutes afterwards.”
What have courts said in similar cases?
“Compensation may be awarded, although there was preexisting heart disease, if disease was aggravated or accelerated by accidental injury.” Farrow v. What Cheer Clay Products Co., 200 N. W. 625 (198 Ia. 922).
“Where employee has preexisting disease, which is aggravated through injury and death results, recovery may be awarded under Workmen’s Compensation Act.” Emery v. Ottumwa Direct Service Stations, 262 N. W. 786 (220 Ia. 885). See, also, Hanson v. Dickinson, 188 Ia. 728, 176 N. W. 823.
In Nicholson v. Roundup Coal Mining Co., 79 Mont. 358, 257 Pac. 270, it was held that the fact that the employee was suffering from a heart disease does not preclude compensation, when it appears that the disease was aggravated or accelerated by an accidental injury which arose out of and in the course of the employment.
In the case of Lindeken v. Lowden, 229 Ia. 645, 295 N. W. 112, a knee injury suffered by a boilermaker aggravated a coronary sclerotic condition, which brought about death. The court said (p. 658) : “We have also repeatedly held that though the injury aggravates or accelerates a physical impairment with which the employee is afflicted, the 'injury is compensable if death resulted therefrom at a time ear*269lier than it would have occurred had not the injury been suffered.”
“Existence of pulmonary tuberculosis and of tuberculosis of throat did not defeat compensation for total disability resulting from aggravation of incipient Pott’s disease through accident.” Weller v. Consumers Power Co., 250 N. W. 298 (264 Mich. 525).
It has been held that death from heart trouble, following an injury received by an employee when he was thrown from a horse while in the pursuance of his duties, is the result of an injury arising out of and in the course of the employment, where the evidence shows that the employee, though a robust man, was afflicted with heart disease and, following the injury, rapidly declined in health until the date of his death. Lachance’s Case, 121 Me. 506, 118 Atl. 370.
We will now consider former decisions of this court in cases similar to the one at bar.
In Gilcrest Lumber Co. v. Rengler, 109 Neb. 246, 190 N. W. 578, 28 A. L. R. 200, where an employee suffered a slight bruise upon his shin, which was not sufficient of itself to cause disability, but which three days later, owing to the diseased condition of his blood, formed an ulcer, we held that his disability was caused by an accident arising out of and in the course of his employment.
In the case of Miller v. Central Coal & Coke Co., 123 Neb. 793, 244 N. W. 401, an employee was down on his knees under a counter, cleaning the office floor at night. Hearing someone enter the office, he arose quickly and struck his back and shoulder on the corner of the counter. As a result his back and shoulder became black and blue and swollen. He continued work for 19 days thereafter. He was then treated by physicians until some time in September, when notice of his disability was filed. Blood tests disclosed a syphilitic condition, which had become aggravated by the injury, and physicians declared that he was totally disabled in their opinion. This court allowed compensation, holding that where an employee, in the course *270of his employment, suffers an injury to his back and shoulder, causing a dormant disease to flare up and disable him, he is entitled to compensation.
In the case of Hendershot v. City of Lincoln, 136 Neb. 606, 286 N. W. 909, a bricklayer, working at the bottom of a sewer ditch, was accidentally hit on the back of the head by two bricks. Several days later he was able to go to the grocery store, but the headache continued. On Friday and Saturday he did part-time work on the sewer job, but collapsed on the job, suffered a chill, and died from lobar pneumonia two weeks after he was injured. Two doctors testified that, because he was hit on the head, he was weaker than he normally would be, and in his weakened condition his resistance to the lobar pneumonia organism was lowered, and therefore it was stated that the lobar pneumonia came as a result of the original injury to his head, and this court allowed recovery of compensation because of the accidental head wound lowering his resistance to the pneumonia germ.
Now, in the case at bar, the deceased performed the hard work of sawing up trees with a crosscut saw two or three weeks before his death, he took part in scuffling and wrestling with other firemen almost every day, he never stopped to rest, nor had shown any shortness of breath, all as testified to by fireman Keller. Those working with him saw no signs of ill health. No one ever knew of his having heart disease.
The typewritten report on the autopsy, exhibit No. 5, is replete with medical terms which explain the exact condition of his heart and the blood vessels connected with it, and the medical expert declares the organ was not normal. But was it not evident to the judges of the compensation court and to District Judge Shepherd that the condition of the heart, as testified to by the medical expert for the insurance carrier, was not the sole cause of death?
Let us patiently review the facts as testified to by the witnesses. When the deceased felt the ladder partially supporting him slipping on the icy roof, he grabbed for the *271edge of the roof, and exclaimed, “Oh, gee,” and fell to the kitchen roof below, striking on his head.
When removed from the kitchen roof by assistant fire chief Feaster and taken into the house and laid on a davenport, Feaster testified that he threw the light in his face and saw that the deceased was having trouble with his breathing, so they laid him on the floor and started artificial respiration, and his pulse continued to beat faintly for perhaps 15 minutes.
Do not these actual facts compel us to reach the conclusion that a big, strong, husky firéman, who had been able to hold up his end in any kind of work or athletic exercise, suffered an accident, and that-the shock of striking his head when he fell, on the roof may have at once awakened the latent or dormant heart condition, and finally resulted in his death from a heart condition which he did not know he had ?
But, as this court held in the Hendershot case, if the concussion of the brick striking the head of Hendershot resulted in a weakened condition which made him an easy prey to pneumonia, from which he died, by the same reasoning might not the accident suffered by the deceased, the evidence of which is clearly convincing, have produced the shock which finally resulted in his death some minutes later from heart disease?
The testimony in this case indicates that, if the deceased had been stricken on the roof with a fatal heart attack, as defendants insist, ordinarily he would have limply fallen to the roof, and been to all intents and purposes stone-dead that moment. But the evidence does not support any such conclusion. He was not limp, he grasped at the edge of the roof and other objects to prevent his falling, he yelled, “Oh, gee,” and his respiration and pulse continued for some moments after he was removed into the house.
Who can deny that deceased suffered an accident, established by so many eyewitnesses ? And, if deceased did suffer this accident first, which hastened his death, his widow is entitled to the award of compensation granted to her in each of the three former hearings in this case, under the *272liberal interpretation required by our statute in compensation cases.
' Lit may be argued that plaintiff cannot recover if deceased finally died from heart disease following an accident, because in her answer she said in paragraph 7: ' “That Albert L. Mook’s death was due to ah accident received while •in the employ of the defendant, city of Lincoln, and while engaged in the performance of his duty in the course of his employment and was not due to heart disease and that said death arose out of said employment by reason of said accident.”
This court has said: “Considered as a whole the evidence does not, it is true, respond to the averments of the petition; but the variance is not in an essential matter and Should, at this stage of the litigation, be altogether "disregarded, for it is evident that it did not mislead the defendant to his prejudice nor embarrass him in making his defense upon the merits.” Toy v. McHugh, 62 Neb. 820, 87 N. W. 1059. See, also, Westing v. Chicago B. & Q. R. Co., 87 Neb. 655, 127 N. W. 1076; Parker v. Omaha Packing Co., 85 Neb. 515, 123 N. W. 1026.
This court has held that, under a familiar rule often acted upon, the pleading may be amended as well after as before judgment to correspond to the proofs. See Raley v. Raymond Bros. Clarke Co., 73 Neb. 496, 103 N. W. 57; Swan v. Bowker, 135 Neb. 405, 281 N. W. 891.
It is quite clear that to allow an amendment of this nature would not in any way change the cause of action (First Nat. Bank v. Myers, 44 Neb. 306, 62 N. W. 459), nor would it mislead the defendant, but in the interest of justice would permit the pleading to be amended to conform to the facts proved by the evidence.
In my opinion, this case should not be reversed, as the findings of fact were supported by sufficient evidence to warrant an affirmance of the award made by the district court.