Blair v. Klein

• Decision Date: 10 January 1964
• Docket Number: No. 35496,35496
• Citation: 125 N.W.2d 669,176 Neb. 245
• Parties: Fred R. BLAIR, Appellant, v. Keith B. KLEIN and Preferred Risk Mutual Insurance Company, Des Moines, Iowa, a Corporation, Appellees.
• Court: Nebraska Supreme Court

Page 669

125 N.W.2d 669

176 Neb. 245

Fred R. BLAIR, Appellant, v. Keith B. KLEIN and Preferred Risk Mutual Insurance Company, Des Moines, Iowa, a Corporation, Appellees.

No. 35496.

Supreme Court of Nebraska.

Jan. 10, 1964.

Syllabus by the Court

1. All facts which, taken together, are necessary to fix the responsibility for an injury complained of constitute a cause of action.

2. A cause of action alleged in an amended petition, although founded upon the same injury as that described in the original, is a different cause of action if it is dependent entirely upon different reasons for holding the defendant responsible for the wrong alleged.

3. Where the facts incorporated into a petition by way of amendment constitute a cause of action separate and independent from that stated in the original petition, the statute of limitations against the cause of action pleaded in the amendment runs until the filing of such amended petition.

4. Before error requires reversal, it must be prejudicial to the rights of the party against whom it was made.

William W. Graham, Omaha, for appellant.

Wear, Boland, Mullin & Walsh, McCormack, McCormack & Brown, A. Lee Bloomingdale, Omaha, for appellees.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

Plaintiff and appellant Fred R. Blair brought this action in the district court for Douglas County, Nebraska. Its object was to recover for the value of a Cadillac automobile owned and operated by the plaintiff which was destroyed, together with damages for personal injuries suffered by the plaintiff, his wife, and two other occupants of said car. The action was brought against the defendants Keith B. Klein and Preferred Risk Mutual Insurance Company of Des Moines, Iowa.

The plaintiff will be referred to as such; and the defendants as such, or as Klein or the insurance company, where it is necessary to distinguish between them.

Inasmuch as certain aspects of the case turn on the pleadings they will be here summarized.

Plaintiff's original petition was filed in the trial court on January 8, 1962. The original petition was amended instanter by the plaintiff by interlineation after requesting and receiving permission to do so from the trial court on December 18, 1962.

The original petition as so amended is here summarized. The italicized portions are the interlined amendments so made which occur in the paragraphs quoted.

The petition, in paragraph No. 1, alleged the corporate existence of the insurance company and that Klein was its authorized agent with power to bind it in relation to the agreement therein set out.

The second and third paragraphs of the petition with the amendments of December 18, 1962, in italics, are as follows: 'II. On or about the 11th day of September, 1958, defendants verbally promised and agreed to insure plaintiff against public liability for bodily injury and property damage, medical payments, collision, comprehensive, personal effects, fire, lightning, transportation, theft, combined additional coverage, towing and labor costs, and family protection, growing out of the ownership, use, and operation of one Cadillac Four Door Sedan, 1953 model, and agreed to furnish plaintiff with a written insurance policy providing for said coverage, at which time plaintiff was to pay the annual premium on said policy, but defendants through their negligence wholly failed to deliver said written policy of insurance, although plaintiff at all times since said agreement was made relied thereon and has stood ready and willing to pay said premium, and do (sic) to said negligence of defendants the plaintiff suffered the injuries and damages hereinafter set forth.

'III. On or about the 17th day of October, 1958, on highway No. 10, about 2 miles east of Weldon, Illinois, said Cadillac Automobile, then and there being operated by the plaintiff, was in collision with another vehicle; and, as a result thereof was damaged and wrecked beyond value; and plaintiff and his wife, Lois L. Blair, and Grover Goodwin and Stella Goodwin, husband and wife, all were passengers in said Cadillac Automobile at the time of said collision, and all received severe and serious injuries, resulting in ambulance service, medication, first aid, surgical, nursing, and hospital treatment; and plaintiff was put to great expense for ambulance and towing services, transportation and other incidental expense; all of which was to be covered under the insurance policy set forth in paragraph II above; upon which plaintiff at all times relied.'

The fourth paragraph alleges the defendants were promptly notified of the loss and plaintiff promptly demanded payment therefor. It is followed by an itemized statement of losses, totalling $4,172.20, and a prayer for a judgment in that amount with costs.

After the amendments by interlineation were made the defendants, on December 20, 1962, were granted leave to plead instead of answering the amended petition. They thereupon filed a motion, first, to require the plaintiff to elect between an action for breach of contract and one based upon negligence because it was not clear whether the amended petition sounded in tort or contract; and, second, in the event plaintiff elected to base his action on tort to require him to set out the specific acts of negligence.

A journal of the court filed December 28, 1962, approved as to form by plaintiff's counsel, recites that at a hearing on December 27, 1962, plaintiff's counsel appeared in court and stated the action would be tried as a tort action based upon the alleged negligence of the defendants and that he was willing so to elect. The second portion of the motion to require the specific acts of negligence to be stated was then heard by the court. The court thereupon ordered that action be tried as a tort action based on negligence and not on contract and sustained the defendants' motion to require the specific acts of negligence to be set out and allowed the plaintiff until December 31, 1962, to file amendments.

On December 31, 1962, a supplemental amendment was filed setting out various specifications of negligence attributed to the defendants, consisting of failure to use diligence in preparing, submitting, or passing on an application for insurance or in the issuance of an insurance policy, together with assurances by the defendants that plaintiff would be or was so insured, which acts, omissions, and assurances occurred between September 11, 1958, and the day of the accident on October 17, 1958, and on specified dates within said period; and that because thereof plaintiff was prevented from seeking other insurance and was placed in the position of using his automobile without formal insurance.

The defendants thereupon filed an amended answer to the plaintiff's petition, as amended, both by interlineation and by supplemental amendment. It consisted of a general denial, a plea of contributory negligence, and an allegation that the cause of action was barred by section 25-207, R.R.S.1943.

At the conclusion of the plaintiff's evidence the defendants made a motion for a directed verdict in their favor, assigning several reasons among which were: 'That the cause of action alleged in plaintiff's petition as amended is a new and different cause of action from that originally alleged in his petition and is barred by the Statute of Limitations, inasmuch as the original cause of action therein stated has been expressly abandoned by plaintiff through the plaintiff's election made in open court and appearing in the order of this Court dated December 28, 1962, * * *.'

The defendants' motion for a directed verdict was sustained by the court and the cause was dismissed. Thereafter his motion for a new trial being overruled, the plaintiff has brought the cause to this court on appeal.

Plaintiff assigns error to the trial court in requiring him to elect whether to proceed on the tort action for negligence or on contract and in sustaining the defendants' motion for a directed verdict. He points out other alleged errors which in view of our decision have no significance.

A careful examination of the original petition of the plaintiff without the amendments in italics heretofore summarized herein, with pertinent portions thereof copied, shows quite clearly that it sought to recover on a contract of insurance. Paragraph I of the petition alleges that Klein had full power to represent the insurance company and bind it in relation to the making of the agreement set out. Paragraph II alleges that d...