Chlopek v. Schmall

• Decision Date: 07 November 1986
• Docket Number: No. 85-092,85-092
• Parties: Ed CHLOPEK and Karl Chlopek, Appellees, v. Kelly J. SCHMALL, James H. Schmall, and Jo Ann L. Schmall, Appellants.
• Court: Nebraska Supreme Court

Page 103

396 N.W.2d 103

224 Neb. 78

Ed CHLOPEK and Karl Chlopek, Appellees, v. Kelly J. SCHMALL, James H. Schmall, and Jo Ann L. Schmall, Appellants.

No. 85-092.

Supreme Court of Nebraska.

Nov. 7, 1986.

Syllabus by the Court

1. Judgments: Appeal and Error. The findings of a court in a law action in which a jury has been waived have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

2. Motor Vehicles: Negligence. It is a general rule that it is negligence as a matter of law for a motorist to drive a motor vehicle on a public highway, at any time, at a speed or in such manner that it cannot be stopped or its course be changed in time to avoid a collision with an object or obstruction discernible within his range of vision in the direction he is traveling.

3. Motor Vehicles: Negligence. The basis of the foregoing rule is that the driver of an automobile is legally and mandatorily obligated to keep such a lookout that he can see what is plainly visible before him and to operate his automobile in such a manner that he can stop it and avoid collision with any object in front of him.

4. Motor Vehicles: Highways. A driver of a motor vehicle about to enter a street or highway protected by stop signs is required to come to a full stop as near the right-of-way line as possible before driving onto such street or highway. After having stopped, such driver shall yield the right-of-way to any vehicle which is approaching so closely on the favored highway as to constitute an immediate hazard if the driver at the stop sign moves his vehicle into or across such intersection.

5. Property: Damages. Where the damage to personal property can, at a reasonable cost, be repaired and the property restored to substantially its condition immediately before the damage occurred, and the cost of repair does not exceed the difference in market value of the property before and after the injury, then the measure of damages is the reasonable cost of repair plus the reasonable value of the loss of use of the property for the reasonable amount of time required to complete the repair.

6. Property: Damages. Where the damage to personal property is such that it cannot be repaired and the property thereby restored to substantially its condition immediately before the damage occurred, or when the reasonable cost of repair exceeds the difference in market value of the property immediately before and immediately after the injury, the measure of damages is the lost market value plus the reasonable value of the loss of use of the property for the reasonable amount of time required to obtain a suitable replacement.

7. Property: Damages. The reasonable value of the loss of use of personal property is generally the fair rental value of property of a like or similar nature or the amount actually paid for rental, whichever is less.

8. Property: Damages. Where property used for commercial or business purposes cannot be rented, then loss of profits may establish the reasonable value of the loss of use.

9. Property: Damages: Case Overruled. To the extent that any prior cases would limit the total compensation for damage to personal property to the fair market value of the property immediately before the injury, they are expressly overruled.

10. Pleadings. A pleading may be amended in furtherance of justice, to conform to the proof, if the proposed amendment does not change substantially the claim or defense. The decision to allow or deny such amendment rests in the sound discretion of the court.

Michael J. Javoronok of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., Gering, for appellants.

James R. Hancock of Hancock & Denton, P.C., and Robert G. Pahlke of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

This is an action for damages by the plaintiffs, Ed and Karl Chlopek, resulting from a collision between a truck with a "pup" trailer, owned by the plaintiffs, and an automobile operated by defendant Kelly J. Schmall, which was owned by her parents, defendants James H. and Jo Ann L. Schmall.

The pleadings raised issues of defendant Kelly Schmall's negligence, the contributory negligence of plaintiffs' driver, and the nature and extent of plaintiffs' damages.

Both parties filed motions for summary judgment, plaintiffs seeking judgment on all issues and defendants seeking partial summary judgment on the issue of whether, as a matter of law, plaintiffs could recover as damages loss of use of the truck and pup trailer if the property was totally destroyed, that is, if the cost to repair the truck and trailer exceeded their market value before the accident.

In deciding the summary judgment motions, the district court determined that defendant Kelly Schmall was negligent and that her negligence is imputed to defendant James Schmall, her father and the head of the family. The trial court further found that the actual damages to the truck, trailer, and other personal items in the truck totaled $49,947.40. The court also determined that, as a matter of law, where a commercial truck is totally destroyed, plaintiffs may recover damages for loss of use of the truck until another truck can be obtained, and where a rental truck is not available, then the loss of use is measured by the loss of profits.

The balance of the summary judgment motions were overruled, and the case proceeded to trial to the court on the remaining issues of the contributory negligence of plaintiffs' driver and the amount of damages for loss of use of the truck and pup trailer.

Following trial, the district court found that plaintiffs' driver was not negligent and that plaintiffs suffered a loss of profit, until they could replace the truck, in the sum of $13,225.18, and entered judgment against all three defendants in the total sum of $63,172.58.

At the hearing on defendants' motion for new trial, plaintiffs were given leave, over objection, to amend the total amount of the prayer of their petition, up to the amount of the judgment, a difference of $364.81. Defendants' motion for new trial was then overruled, and this appeal followed.

Defendants on appeal do not challenge the trial court's finding that defendant Kelly Schmall was negligent or the amounts of the damages determined. They do assign as error: (1) The trial court's finding that plaintiffs' driver was not contributorily negligent; (2) The allowance as a matter of law of damages for loss of use of a totally destroyed commercial vehicle; and (3) Abuse of discretion in allowing plaintiffs to amend their petition after trial and judgment.

We note at the outset that the district court's entry of partial summary judgment held that the negligence of Kelly J. Schmall was to be imputed only to her father, James H. Schmall, as head of the family, under the Nebraska family purpose doctrine. Although not assigned as error, Jo Ann L. Schmall should have been dismissed from the suit, since, as a result of that holding, no negligence could be imputed to her, and the amended petition contained no allegations that she was personally negligent. The judgment against her is reversed and the petition is ordered to be dismissed as to her.

We turn to defendants' contention that the trial court erred in finding that plaintiffs' driver was not contributorily negligent. Our review of this issue is governed by what we have often said:

[T]he findings of a court in a law action in which a jury has been waived have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong. In such a circumstance it is not within our province to resolve conflicts in or to weigh the evidence; if there is a conflict in the evidence, this court will review the judgment rendered and will presume that controverted facts were decided in favor of the successful party.

Wheeler Constr. v. Town & Country Realty, 217 Neb. 424, 427, 348 N.W.2d 890, 892 (1984); Nerud v. Haybuster Mfg., 215 Neb. 604, 340 N.W.2d 369 (1983).

The accident took place at the intersection of U.S. Highway 26, an east-west highway, and a north-south county road in Morrill County, Nebraska. Highway 26 is protected by stop signs on the county road.

Steven Doornbos was driving plaintiffs' truck and the pup trailer loaded with approximately 94,000 to 100,000 pounds of sugar beets. He testified that he was proceeding west on Highway 26, and as he crested an incline he saw defendants' car stopped behind the stop sign on the county road on the north side of the intersection, facing south. He was about 1,000 feet from the intersection at that point. Defendant's car remained stopped until Doornbos was 500 to 700 feet from the intersection, then moved forward and stopped again. When he was 400 feet from the intersection and moving at about 50 m.p.h., the car proceeded into the intersection in front of him. He applied his brakes, but as the car continued to move across the westbound lane, he released his brakes and swerved to his left to avoid a collision which was unsuccessful, the vehicles colliding just across the centerline of Highway 26 in the eastbound lane. After impact, the truck veered back toward the centerline, overturned on its side, slid down the highway, rotated twice, and caught fire.

Kelly Schmall, by deposition, testified that at the time of the accident she was 14 years of age and was driving her parents' automobile on a learner's permit. Riding in the car with her were her 16-year-old sister and 11-year-old brother. The three were going to school and were late getting started.

Kelly drove south on the county road to Highway 26 and stopped at the stop sign. She then moved forward to the edge of the highway and stopped again, intending to turn left and proceed east on Highway 26. She looked to her left, but a glare off a road sign to the east made it difficult to see...