dissenting.
I dissent and lament the wound inflicted by the majority upon a venerable but endangered friend: The Rule of Law.
Reasonable minds schooled in the law are certainly entitled to differ as to whether the “increased risk” or the “positional risk” rule is the better reasoned one. Thus, were this a case of first impression, a majority of this court would have both the right as well as the duty to choose one rule over the other. But this is not a case of first impression. Nor is it a case dealing with a nonstatutory principle of common law.
The Legislature enacted the compensation act 73 years ago. 1913 Neb. Laws, ch. 198, § 1, p. 579. Thirteen years later, this court interpreted the “arising out of and in the course of” language of the act for the first time. Gale v. Krug Park Amusement Co., 114 Neb. 432, 437, 208 N.W. 739, 741 (1926), determined that to be compensable an injury caused by the elements must result from a hazard “greater than that to which the public generally is subjected.” During the intervening 60 years, the Legislature has seen fit to let that consistently applied judicial interpretation of its enactment stand. The most recent application was in McGinn v. Douglas County Social Services Admin., 211 Neb. 72, 317 N.W.2d 764 (1982).
The controlling rule of law is that where a judicial interpretation of a statute has not evoked a legislative amendment, it is to be presumed that the Legislature has acquiesced in the court’s determination of the legislative intent. Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). Without expressly so stating, we most recently applied that rule in Smith v. Columbus Community Hosp., 222 Neb. 776, 387 N.W.2d 490 (1986), as the result of which we left undisturbed our earlier interpretation of the *240wrongful death statute.
It seems to me we are not free to ignore the legislative acquiescence rule at our whim. Such a selective application of any rule is arbitrary and capricious and robs the law of the predictability it needs.
The actions of our Legislature quickly dispel any notion that it is unaware of what this court does. The most recent example that the Legislature pays attention to our rulings is its reaction to Vacek v. Ames, 221 Neb. 333, 377 N.W.2d 86 (1985). In less than 4 months the Legislature enacted a statute calculated to do away with the common-law causes of action for criminal conversation and alienation of affections which Vacek v. Ames preserved. 1986 Neb. Laws, L.B. 877. Another example of legislative awareness is found in the history of the discovery rule as applied to medical malpractice cases. In Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962), this court held that the statute of limitations did not begin to run until the patient discovered, or in the exercise of reasonable diligence should have discovered, the malpractice. Ten years later, the Legislature responded by limiting the period of discovery to 10 years. 1972 Neb. Laws, L.B. 1132, § 1; Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). That is the way our system of government is designed to work. In this instance the esteemed members of the majority have, in my humble opinion, usurped the function of the Legislature.
The only significant thing which has changed since this court’s first interpretation of the “arising out of and in the course of” language of the compensation act is the composition of this court. I respectfully submit that if the law depends upon nothing more than the predilections of those who happen to sit on this tribunal at any given time, there is no law.
The only mistake the compensation court made was to apply the law as this court had declared it to be. I would affirm.
Boslaugh and Hastings, JJ., join in this dissent.