dissenting.
I respectfully dissent from the majority opinion because I believe the majority of the court has, in this case, disregarded fundamental rules applicable to our review of findings of the Nebraska Workmen’s Compensation Court. While the opinion purports not to review de novo, it does so in fact.
The plaintiff, in a workmen’s compensation case, just as in any other case, has the burden of proving his cause of action by a preponderance of the evidence. It was the plaintiff’s burden to establish that the death arose out of and in the course of the employment. § 48-101, R. R. S. 1943; Reis v. Douglas County Hospital, 193 Neb. 542, 227 N. W. 2d 879; Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N. W. 2d 410. The term “in the course of’’ refers to the time, place, and circumstances of the accident. Mauser v. Douglas & Lomason Co., 192 Neb. 421, 222 N. W. 2d 119. All this means under the circumstances of this case is that it must be proved that at the time the accident occurred the decedent was going to or coming from a job for his employer.
The evidence in this case is such that the Nebraska Workmen’s Compensation Court could find the plaintiff had failed to prove both the “arising out of’’ and “in the course of’’ elements of the cause of action. Several factors in the evidence support the conclusion that the decedent was not in the course of his employment when the accident occurred. The preponderance of the evidence, in fact, seems to point that way. These factors are: (1) There is no direct evidence the decedent had any business appointment in either Omaha or Lincoln on the day of the accident. (2) The invitation of the decedent to *355the witness Nielsen to have the witness accompany him on a flight may reasonably be construed to be a social invitation for a joyride in a new airplane. There appears to have been no reason for decedent to have gone with Nielsen to either Lincoln or Omaha on a job of work. (3) The flight path as indicated by the location of the crash is not indicative of a trip to either Lincoln or Omaha, but rather of random flight, although this item, as we later point out, is really not a determinative factor. (4) There was no radio contact by the decedent with the airports at either proposed destination, which communication would be routine if he intended to land at either place. (5) The decedent did not contact any customer, either the day before or the morning of the flight, to advise of his coming. (6) Although the decedent told his wife he had work to do when he left home, his activities from 8 a.m., to 10:30 or 11 a.m., of the day of the accident are wholly unaccounted for. (7) The court was not required to believe the testimony of the decedent’s wife as to her conversation with her husband just before he left.
All of the evidence recited in the opinion of the court does not demonstrate that the findings of the Workmen’s Compensation Court are clearly wrong. The court simply draws a different inference based upon the cold record and not having heard the testimony of the witnesses. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N. W. 2d 451; Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N. W. 2d 92.
The discussion in the opinion and the citation of authority on deviation from route is not on point for it assumes the very fact which must be proved, viz., that decedent was in the course of his employment at the time of the crash. Keebler v. Harris, 120 Neb. 739, 235 N. W. 328, cited by the court, is good law, but it simply does not apply until the basic premise is proved.