Bonacci v. Cerra
| Decision Date | 15 April 1938 |
| Docket Number | 30168 |
| Citation | 279 N.W. 173,134 Neb. 476 |
| Parties | ANTONIO BONACCI, APPELLANT, v. THOMAS CERRA, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " The office of a reply is to deny the facts alleged in the answer as a defense, or to allege matters in avoidance of such defense not inconsistent with the cause of action set out in the petition." Plummer, Perry & Co. v Rohman, 61 Neb. 61, 84 N.W. 600.
2. " Statements, admissions and allegations in pleadings (upon which the case is tried) are always in evidence for all the purposes of the trial; they are before the court and jury, and may be used for any legitimate purpose." Holmes v. Jones, 121 N.Y. 461, 24 N.E. 701.
3. A party may at any and all times invoke the language of his opponent's pleading, on which a case is being tried, on a particular issue, as rendering certain facts indisputable; and in doing this he is neither required nor allowed to offer such pleading in evidence in the ordinary manner.
4. " The value of testimony where the witness refuses to testify positively to the facts, is for the jury to determine, and will vary with the surrounding circumstances and the manner and appearance of the witness." Collins v. Hughes & Riddle, Neb., 278 N.W. 888.
5. Evidence and pleadings examined, and held ample to support the verdict returned and judgment entered thereon.
6. Where, in an action to recover for personal injuries, the jury are properly instructed as to the burden of proving the negligence charged as a proximate cause of the injury, failure to further instruct on " unavoidable accident" or to further define that term is not error, in the absence of a request therefor.
Appeal from District Court, Douglas County; Leslie, Judge.
Suit by Antonio Bonacci against Thomas Cerra to recover damages for injuries allegedly received by plaintiff while riding as a guest in defendant's automobile. From an order overruling the plaintiff's motion for new trial after judgment for defendant, the plaintiff appeals.
Judgment affirmed.
O'Sullivan & Southard and George H. Merten, for appellant.
Crofoot, Fraser, Connolly & Stryker, contra.
Heard before GOSS, C. J., EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ., and MUNDAY, District Judge.
This is a suit to recover damages for injuries alleged to have been received by plaintiff while riding as a guest in defendant's automobile, due to the latter's alleged gross negligence. A trial to a jury resulted in a verdict and judgment for defendant, and from the order of the trial court overruling his motion for a new trial, plaintiff appeals. For convenience the parties to this appeal will be referred to as they appeared in the trial court.
In this court plaintiff presents but four contentions, viz.: That the verdict is not sustained by sufficient evidence; and that the court erred in giving instructions 6, 8, and 9 given on its own motion. The last three are combined in plaintiff's argument and presented together.
An examination of the briefs presented in this case discloses that its consideration may be simplified by a determination of the actual issues presented by the pleadings and tried in the district court.
It will be remembered that this jurisdiction has long been committed to the rule that a plaintiff must recover, if at all, on the cause of action stated in his petition. It is not the province of a reply to introduce a new cause of action. Hastings School District v. Caldwell, Hamilton & Co., 16 Neb. 68, 19 N.W. 634; Savage v. Aiken, 21 Neb. 605, 33 N.W. 241; Wigton v. Smith, 46 Neb. 461, 64 N.W. 1080; Snyder v. Johnson, 69 Neb. 266, 95 N.W. 692; Hallner v. Union Transfer Co., 79 Neb. 215, 112 N.W. 334.
"The office of a reply is to deny the facts alleged in the answer as a defense, or to allege matters in avoidance of such defense not inconsistent with the cause of action set out in the petition." Plummer, Perry & Co. v. Rohman, 61 Neb. 61, 84 N.W. 600.
In Kearney County Bank v. Zimmerman, 5 Neb. Unoff. 556, 99 N.W. 524, we find the following: "It is contended by appellants, and we think with much force, that the judgment in favor of plaintiff in the court below cannot be sustained unless supported by sufficient allegations in the petition; and that it is not the province of a reply to * * * supply material allegations to the original petition."
And, stating the conclusion of this court in Livanis v. Northport Irrigation District, 120 Neb. 314, 232 N.W. 583, the opinion closes with the following: "In the instant case, the petition, contradicted by the admission in the reply and not being aided by the new allegations therein, required the judgment of the trial court."
The conclusion is that the reply must be consistent with the allegations of the petition, and is not competent to supply or add thereto a material allegation.
It further appears that plaintiff specifically alleged in his petition, upon which this action was tried, that certain acts of commission and omission constituted the gross negligence of which defendant was guilty, which were, in part, incorporated into instruction 1 of the court given in this case in the following form, viz.: "Plaintiff further alleges that while riding in said automobile at said time and place, defendant operated same at an excessive and illegal rate of speed, to wit, seventy miles an hour, and in such a grossly negligent manner that he drove said automobile off the right side of the highway pavement, and then back onto said highway pavement to the left of the center, and then to the right side of the center of the pavement, and then again to the left side of the pavement, and then drove said automobile off the pavement upon and over the left shoulder, and then continued to drive it at said excessive rate of speed, causing said automobile to leave the shoulder on the left side of the pavement, and driven down an embankment, causing it to turn over, and plaintiff to suffer severe personal injuries."
The petition also alleged that the distance traveled by this automobile, while weaving from one side of the roadway to the other, was 150 yards, which, consistent with these allegations, we estimate occupied approximately four seconds of time. This petition is subscribed and sworn to by plaintiff.
Defendant's answer was limited, first, to a proper denial of the charge of negligence; and, second, to the following: "For further answer this defendant alleges that at said time and place he was driving said automobile east on said highway in a careful and proper manner; that at said time a large nail or spike became imbedded in the right rear tire of said automobile, causing same to be suddenly deflated; that this defendant applied his brakes and attempted to slow and stop said automobile, but on account of the deflated tire said automobile became unmanageable and went off the left side of the road into a ditch, and this defendant alleges that said accident occurred without fault or negligence upon his part, and at a time when he was using his best endeavors to avert an accident."
By instruction No. 3 the jury were informed, viz.: "The plaintiff for reply to the answer of the defendant denies each and every allegation of new matter set forth by defendant in his answer as a defense to plaintiff's cause of action."
By the fourth instruction the jury were informed as to the burden of proof imposed by the issues on plaintiff, which he was required to carry to entitle him to a recovery, and by the fifth instruction gross negligence was defined, and the jury were further instructed therein: "In this action it is incumbent upon the plaintiff to establish by a preponderance of the evidence that the defendant was guilty of gross negligence, as hereinbefore defined, and in the event that plaintiff has failed to so establish gross negligence upon the part of the defendant by a preponderance of the evidence, your verdict must be for the defendant, even though you may find that the defendant was in fact guilty of ordinary negligence or slight negligence in the operation of his automobile."
It will be noted that no attack is made by plaintiff upon the correctness of these instructions.
For the purpose of this review, the jury's verdict determines for this court all questions of conflicting evidence. An examination of this car very shortly after the accident disclosed that this wrecked automobile was on its wheels on the left side of the road (U. S. Highway No. 30) at a point about five miles east of Grand Island, Nebraska, and showed evidence that it had rolled over once or possibly twice. "The right rear wheel (tire) was down" and a nail "about five inches long" was imbedded in it. The time of this occurrence was just after noon. It was a bright, clear day. The car had been proceeding eastward on a straight highway over a dry, smooth, level pavement, 18 feet in width, separated into two halves by a black strip marking the center of the road, and in which highway no defects are disclosed. No obstruction to the view existed and no other automobiles or vehicles were in sight. It appears that the tires were previously in good condition, and had been successfully tested by a journey of 700 miles.
The plaintiff in his brief insists that the speed of the automobile was established, at the time of the accident, as 80 miles an hour; that ...
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