Carlon v. City Savings Bank

• Decision Date: 23 December 1909
• Docket Number: 16,377
• Citation: 124 N.W. 91,85 Neb. 659
• Parties: MARY E. CARLON, APPELLEE, v. CITY SAVINGS BANK, APPELLANT
• Court: Nebraska Supreme Court

124 N.W. 91

85 Neb. 659

MARY E. CARLON, APPELLEE, v. CITY SAVINGS BANK, APPELLANT

No. 16,377

Supreme Court of Nebraska

December 23, 1909

APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.

AFFIRMED.

William Baird & Sons, for appellant.

H. H Bowes and E. C. Hodder, contra.

OPINION

BARNES, J.

This was an action to recover damages for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant bank in making repairs to premises occupied by her as its tenant. The case is here on a second appeal. Our former opinion is reported in 82 Neb. 582, where the facts are fully set forth. At the close of the first trial in the district court the jury were directed to return a verdict for the defendant, and from a judgment rendered thereon the plaintiff appealed. By our former opinion it was held that the cause should have been submitted to the jury on its merits. The judgment of the district court was therefore reversed and a new trial was awarded. On the second trial in the district court the jury returned a verdict for the plaintiff, judgment was rendered thereon, and the defendant has brought the case here by appeal.

Among defendant's assignments of error we find the following: "First. The verdict of the jury and judgment are not sustained by the evidence, and are contrary to the law and evidence. Second. The court erred in overruling the defendant's motion to instruct the jury for it at the close of the testimony." These assignments will be considered together. The evidence contained in the present bill of exceptions is practically the same as that which was before us upon the former appeal. Indeed, if there is any difference the plaintiff has strengthened her case. However, the defendant still contends that there is no evidence which shows or tends to show that the bank made the repairs in question. An examination of the bill of exceptions discloses that the plaintiff testified that she paid the rent to the bank on the 19th day of March, 1903, and this fact is admitted by defendant's witnesses; that in less than a week thereafter she discovered that there was an old cistern concealed under the walk between the kitchen and outhouse, situated on the premises; that she considered it a source of danger, and immediately went to the bank and notified Mr. Badgerow, to whom she paid the rent, and who was at that time acting as its assistant treasurer, of the dangerous condition of the premises, and requested that they be repaired; that the same day Mr. Badgerow came down to the house and employed a workman to fill the cistern and replace the sidewalk, which was accordingly done. Badgerow admits that he collected the rent for the defendant bank, but denies that plaintiff notified him of the existence of the danger, and requested the making of the repairs. As there was a conflict of evidence upon this point the question was one for the jury. It was so held in our former opinion, and is now the law of the case so far as this part of the controversy is concerned. There seems to be no reason for setting aside our former judgment upon this point, and therefore the trial court did not err in refusing to instruct the jury to return a verdict for the defendant.

It is also contended that the district court erred in giving his fourth instruction to the jury, which reads as follows "You are instructed that if you find from the evidence that the repairs in question were made by some employee of William K. Potter, receiver of the Omaha Loan & Trust Company, then you must determine whether said receiver was at that time acting as agent of the defendant bank or was acting solely for the Omaha Loan & Trust Company as holder of the second mortgage upon said premises, and unless you find by a preponderance of the evidence that said Potter was acting for the defendant bank, in part at least, then your verdict should be for the defendant." An examination of the record discloses that the defendant bank took over the mortgage on the premises in question and the assignment of the rents thereon from its predecessor, the Omaha Loan & Trust Company Savings Bank, and thereby became, in effect, a mortgagee in possession. It also appears that some time in the year 1901 the Omaha Loan & Trust Company, which was the agent of the Omaha Loan & Trust Company Savings Bank, became insolvent, and that Potter was at that time appointed as receiver thereof; that for a time, as such receiver and agent for the defendant bank, he collected the rent for the premises in question. But...