Brasier v. Cribbett
| Decision Date | 28 February 1958 |
| Docket Number | No. 34291,34291 |
| Citation | 88 N.W.2d 235,166 Neb. 145 |
| Parties | George BRASIER, Appellant, v. R. F. CRIBBETT; City of Wahoo, Nebraska, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. When a demurrer to a petition is sustained, the plaintiff's action dismissed, and a motion for a new trial and rehearing is filed, in the event it is ruled upon, then under section 25-1912, R.R.S.1943, the time for appeal begins to run from the date of the ruling on the motion for a new trial and rehearing.
2. During the pendency of a motion for a new trial timely filed, no appealable order is considered as having been rendered until the motion for a new trial is disposed of.
3. All lawful enterprises of a municipal corporation must be engaged in for a public purpose, and the fact that a particular enterprise is for a public purpose does not determine whether such enterprise is a corporate or proprietary function, in the exercise of which the municipality is subject to tort liability, or a governmental function immune from such liability.
4. The distinction between a governmental and proprietary function of a municipal corporation is a judicial and not a legislative question, and legislative declaration as to the nature of the authority delegated by the statute is not controlling.
5. A municipality or the officers, agents, servants, or employees thereof, may be subject to a suit sounding in tort in the operation, superintendence, or management of a municipal airport or other air navigation facility.
6. The distinguishing features of agency are its representative character and its derivative authority. Whether a particular relationship is an agency depends on the relations of the parties as they in fact exist, without regard to what they call their relationship.
7. Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.
J. A. Hayward, Lincoln, for appellant.
H. V. Kanouff, Louis E. Dolezal, Wahoo, Lloyd E. Chapman, Lincoln, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUCH, JJ.
This is an action at law brought in the district court for Saunders County by George H. Brasier, plaintiff, against R. F. Cribbett, the City of Wahoo, and the mayor and members of the city council of the city as defendants. Service of process was had on the defendants R. F. Cribbett and the City of Wahoo, but not on the members of the city council of the city. The mayor and members of the city council made no appearance in this case. Therefore, the defendants may be designated as R. F. Cribbett and the City of Wahoo. The defendants R. F. Cribbett and the City of Wahoo demurred to the plaintiff's petition. The trial court sustained both demurrers. The plaintiff filed a motion for rehearing. The trial court overruled the motion for rehearing. The plaintiff elected to stand on his petition, and the trial court dismissed the plaintiff's petition. The plaintiff appeals.
The plaintiff's petition, insofar as it need be considered here, alleged in substance that the City of Wahoo is a duly constituted city of the second class; that the plaintiff is the owner of a licensed aircraft and is a licensed pilot; and that R. F. Cribbett was the lessee and operator of the Wahoo Municipal Airport pursuant to a valid lease agreement entered into by him and the city council of the City of Wahoo, the lease agreement being attached to the petition and made a part thereof by reference. The plaintiff further alleged that he entered the Wahoo Municipal Airport on August 18, 1955; that he surveyed his approach to the ramp upon landing and proceeded to that point in the apparent route; that he applied the necessary power to the aircraft to consummate the approach and, owing to an unmarked obstruction on the approach to said ramp left by the carelessness and negligence of the defendants, plaintiff's aircraft came in contact with said obstruction, a drainage pipe, while under power, which caused the aircraft to tip forward striking the propeller against the ground, damaging it beyond repair and concurrently causing the left tire to blow out and the landing gear to collapse, thereby causing the left wing to drop to the ground damaging the landing gear assembly which was beyond repair, and damaging the wing tip which was adjudged by the repair firm as not being absolutely necessary to repair but was in effect damaged; and that the injuries to the plaintiff's aircraft amounted to $303.43. For the second cause of action the plaintiff alleged that he sustained and suffered damages in the sum of $1,000 for loss of use and rental of said aircraft for the purpose used by him in his enterprise at the rate of $50 a day. The petition further alleged that the plaintiff made due claim upon the City of Wahoo, and the claim was denied; that notice of appeal had been given concurrently with the filing of the petition; and that the plaintiff, as such claimant, appealed from the decision denying the claim. The prayer was for judgment in the amount of $1,303.34, against the defendants and each of them and for costs.
'An exhibit incorporated in a pleading is a part of it for all purposes in the case and it may be considered in deciding if the pleading states a cause of action or a defense.' Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686, 687.
We herewith set forth exhibit 'A' attached to the petition which, in substance, is an agreement made September 12, 1951, by and between the City of Wahoo, party of the first part, and R. F. Cribbett, party of the second part. It provided that the party of the first part was the owner of the Wahoo Municipal Airport and the party of the second part was desirous of leasing a part of said airport. It was agreed that the party of the second part should have a lease upon all of the airport except 60 acres which had theretofore been leased to the Wahoo Milling Company for a period of 2 years from the date thereof, with an option of 3 additional years thereafter on a year to year term. The instrument further provided that the party of the second part was to operate the airport for the general use of the public and provide facilities, services, and commodities with a charge therefor comparable to those offered by like municipal airports; that the party of the second part was to maintain the administration buildings, city hangars, and runways, making necessary repairs and construction with the consent of and at the expense of the party of the first part; that the party of the second part was to maintain a telephone in the administration building, pay for the same, and pay the electricity bill for the maintenance of the city-owned hangars and administration building and provide adequate tie-down facilities for airplanes; that the party of the second part was to make an inspection of the said premises at least once a week and after storms to determine if any dangerous conditions or hazards existed on said airport; that the party of the second part, for his services, was to receive free hangar use for one plane, free use of the administration building and airport; that the party of the second part was to retain all hangar rentals due the city on other hangars than the one used by him, and to retain all profits on oil, gasoline, and commodities sold by him on the premises; that the party of the second part should enforce all rules and regulations of the Civil Aeronautics Administration and the State Department of Aeronautics ofthe State of Nebraska, and should further enforce any rules, regulations, orders, or policies of the council of the City of Wahoo theretofore adopted; that the party of the first part should not be liable for any act or acts of the party of the second part, nor should the party of the second part bind, or attempt to bind, the city in any manner; and that nothing therein contained should be construed as creating the relation of employer and employee between the parties, the party of the second part being deemed at all times an independent contractor. It was further agreed that the party of the second part should at all times provide workmen's compensation insurance for any employees hired by him in any capacity at said airport.
The defendants' demurrers to the plaintiff's petition were primarily based on the grounds that the facts alleged therein were not sufficient to constitute a cause of action.
On March 9, 1957, the court sustained the demurrers of defendants R. F. Cribbett and the City of Wahoo, and gave the plaintiff 30 days to file an amended petition.
On March 23, 1957, the plaintiff elected to stand upon his petition.
On April 11, 1957, the plaintiff filed a motion for rehearing, moving the court to vacate its judgment dismissing the proceedings.
On May 1, 1957, the plaintiff filed a motion to withdraw his motion for rehearing. This motion was sustained. The plaintiff having elected to stand on his petition, the court dismissed the plaintiff's petition. On the same day the plaintiff refiled his motion for rehearing.
On May 7, 1957, the cause came on for hearing on the plaintiff's motion for rehearing and was taken under advisement.
On June 17, 1957, the plaintiff's motion for rehearing was overruled.
On June 20, 1957, the plaintiff gave notice of appeal.
The defendant R. F. Cribbett contends that where a demurrer to a petition is sustained, the demurrer admits all of the material facts averred in the petition.
A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact. Babin v. County of Madison, 161 Neb. 536, 73 N.W.2d 807.
The defendant R. F. Cribbett further contends that after the sustaining of the defendants' demurrers and...
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Anderson, By and Through Doss v. Jackson Municipal Airport Authority, 53194
...(1939). The above holdings are reiterated in Caroway v. City of Atlanta, 85 Ga.App. 792, 70 S.E.2d 126 (1952), and Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235 (1958). Both cases involved interpretations of statutes with wording almost the same as our Mississippi acts, and whether use o......
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...inference The above holdings are reiterated in Caroway v. City of Atlanta, 85 Ga.App. 792, 70 S.E.2d 126 (1952), and Brasier v. Cribbett, 166 Neb. 145, 88 N.W.2d 235 (1958). Both cases involved interpretations of statutes with wording almost the same as our Mississippi acts, and whether use......
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