Bingaman's Estate, In re

• Decision Date: 24 July 1953
• Docket Number: No. 33238,33238
• Citation: 157 Neb. 467,59 N.W.2d 614
• Parties: In re BINGAMAN'S ESTATE. REHN v. BINGAMAN.
• Court: Nebraska Supreme Court

Page 614

59 N.W.2d 614

157 Neb. 467

In re BINGAMAN'S ESTATE.

REHN v. BINGAMAN.

No. 33238.

Supreme Court of Nebraska.

July 24, 1953.

Syllabus by the Court.

1. An order denying a motion for summary judgment determines only that the court making it was not then convinced by the record in the case that there was no genuine issue as to any material fact and that the party interposing the motion was entitled to a judgment as a matter of law.

2. The fact alone that a litigant is subjected to inconvenience, annoyance, or expense by an order of the court does not give him a right to appeal from it if he is not thereby barred from asserting or defending his claim of personal or property rights in court.

3. An order overruling a motion for a summary judgment is not a final order within the meaning of section 25-1902, R.R.S.1943.

Cranny & Moore, Omaha, for appellant.

E. Melvin Kennedy, Emmet L. Murphy and G. H. Seig, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

Eric H. Rehn filed a claim for unliquidated damages in the proceedings for the administration of the estate of Alvin A. Bingaman, deceased, in the county court of Douglas County. The damages claimed were alleged to have resulted from negligence of Alvin A. Bingaman in his lifetime and by virtue of which the claimant received personal injuries. The county court, upon hearing the claim, the answer and objections made thereto by the estate, disallowed the claim. The claimant appealed to the district court. His petition on appeal alleged the death of Alvin A. Bingaman on November 7, 1946; the appointment of Arthur Bingaman as administrator of the estate of Alvin A. Bingaman, deceased, and his qualifying as such; that Alvin A. Bingaman, for convenience hereafter referred to as Bingaman, owned a truck upon which was mounted a boom equipped with cables and appropriate fittings for its use and which was operated by power-driven machinery; that on November 7, 1946, pursuant to an oral agreement with John P. Mainelli to unload various items of material, particularly a large iron vat lid at the premises of the Falstaff Brewery, Bingaman came to the premises involved and proceeded with the performance of the services contemplated by the oral agreement; that the lid to the mash tub was hoisted by cables attached to the boom from the railroad car and the truck with Bingaman controlling and operating it moved to a point in front of the brewery; that after reaching this point Bingaman manipulated the controls in such manner as to cause the boom to come in contact with over-head high voltage electric transmission wires which were suspended and carried on poles in front of the brewery; that as a result thereof, electric energy passed through the boom, the cables, and the lid; that Eric H. Rehn, who was assisting in the operation and was then in contact with the lid, was severely and permanently injured; that he was an employee of Mainelli and at the time of the accident was working in the due course of his employment aiding and assisting in the transfer of the lid from the railroad car to the brewery; and that Bingaman operated the boom and cables negligently and his negligence was the cause of the injuries and damage to the appellee Rehn.

The negligence charged against Bingaman was that he improperly and negligently parked the truck with the boom extending along the power line and nearer thereto than was reasonably safe for the movement of the boom by the mechanism provided for that purpose or to accomplish the work intended and that at that time Bingaman had exclusive control and operation of the mechanism and the boom; that he did negligently cause the boom to come in contact with the power line; and that he negligently failed to warn the appellee before he, Bingaman, moved or caused to be moved the boom, instead of limiting the operation to the movement of the cables only, as careful and proper operation required.

The estate's answer denied generally the charges of negligence as alleged in the petition, and denied that Bingaman had or was delegated the duty of warning the appellee of anything at the place of the accident involved in this case. Many other defenses are pleaded by the appellant such as the lack of due care and assumption of risk which are not necessary to detail at this time.

John P. Mamelli was named a defendant in the district court solely for the purpose of protecing any right he had, as the employer of Rehn, of subrogation by the terms of the Workmen's Compensation Act.

Counsel for the administrator of the estate filed a motion for a summary judgment in the district court on the grounds that the pleadings and affidavit thereto, the opinion by the Supreme Court of Nebraska in the case of Peterson v. Estate of Bingaman, 155 Neb. 24, 50 N.W.2d 523, the bill of exceptions in such cited case, it being a companion case to the instant case, and the deposition of Walter Hodder show that the administrator of the estate is entitled to a judgment as a matter of law. The motion for summary judgment was overruled. There was also filed by the estate a motion for a new trial which was denied. The administrator of the estate appealed from the other overruling the motion for a summary judgment.

In considering a motion for a summary judgment by the trial court, it is guided by the following pertinent authorities:

The summary judgment law is contained in sections 25-1330 through 25-1336, R.S.Supp., 1951.

The object of a motion for summary judgment is to separate the formal from the substantial issues raised by the pleadings. See, Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A., p. 153; Sprague v. Vogt, 8 Cir., 150 F.2d 795.

In considering a motion for a summary judgment the court should view the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may be reasonably drawn therefrom. See, Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244; Dennis v. Berens, 156 Neb. 41, 54 N.W.2d 259; Ramsouer v. Midland Valley R. R. Co., 8 Cir., 135 F.2d 101; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881; Mecham v. Colby, 156 Neb. 386, 56 N.W.2d 299.

The court examines the evidence on motion for summary judgment, not to decide any issue of fact presented in the case, but to discover if any real issue of facts exists. See, Dennis v. Berens, supra; Sprague v. Vogt, supra. In other words, the court can merely determine than an issue of fact does or does not exist. If such an issue does exist, the summary judgment act has no application; if such issue does not exist, a motion for a summary judgment affords a proper remedy. The evidence offered in support of the motion is for the purpose of showing that no issue of fact exists, not to try issues on pleadings, depositions, admissions, and affidavits which constitute only a part of the evidence available on a trial on the merits. The burden is upon the moving party to show that no issue of fact exists, and unless he can conclusively do so the motion for summary judgment must be overruled. See, Illian v. McManaman, supra; Dennis v. Berens, supra; Mecham v. Colby, supra, and cases cited therein.

The action of the trial court in overruling the motion for summary judgment indicates it was not convinced by the record of the case as it existed at the time the court passed on the motion that there was no genuine issue as to any material fact and that the moving party was entitled to a judgment as a matter of law. Section 25-1332, R.S.Supp., 1951; Dennis v. Berens, supra; Illian v. McManaman, supra; Mecham v. Colby, supra.

The overruling of the motion did not decide any issue of fact or proposition of law affecting the subject matter of the litigation. All or any defenses of the estate remained just as before the denial of the motion for summary judgment, the case being retained for trial in the district court as any other civil action on appeal from the county court. See, section 30-1606, R.S. Supp., 1951; section 25-1104, R.R.S.1943.

An application for a summary judgment is a step in the proceedings of the case, that is, it is procedural in fact. It may be said that the effect of the order overruling the motion for summary judgment, as in the instant case, is no different than one denying judgment on the pleadings.

The appellant sets forth several assignments of error, the principal one being that the trial court erred in overruling the appellant's motion for a summary judgment and in refusing to enter a summary judgment in favor of the estate of Alvin A. Bingaman, deceased.

The appellee contends that the court is not vested with and lacks jurisdiction of the appeal for the reason that the order overruling the motion of appellant for summary judgment is not a final order and is not a proper subject of appeal in this court.

The answer to this assignment of error depends upon whether or not the order overruling the motion for a summary judgment is a final and appealable order within the meaning of section 25-1902, R.R.S.1943, which provides: 'An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a 'final order' which may be vacated, modified or reversed, as provided in this chapter.'

It is obvious that the overruling of the motion in question did not determine the action, nor did such ruling prevent a judgment. Did it affect a substantial right?

This court has defined a substantial right as follows: A substantial right is an essential legal right, not a mere technical one. See, Egan v. Bunner, 155 Neb. 611, 52 N.W.2d 820; Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 35 N.W.2d 116.

The...