Crane v. Whitcomb

• Decision Date: 03 June 1955
• Docket Number: No. 33761,33761
• Citation: 70 N.W.2d 496,160 Neb. 527
• Parties: Howard E. CRANE, Appellee, v. Charles W. WHITCOMB, Appellee. Impleaded with: Mrs. Neville Whitcomb, Appellant.
• Court: Nebraska Supreme Court

Page 496

70 N.W.2d 496

160 Neb. 527

Howard E. CRANE, Appellee, v. Charles W. WHITCOMB, Appellee Impleaded with: Mrs. Neville Whitcomb, Appellant.

No. 33761.

Supreme Court of Nebraska.

June 3, 1955.

Syllabus by the Court.

1. A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.

2. Generally a principal is not liable for physical harm caused by the negligent physical conduct of an agent who is not a servant, during the performance of the principal's business, unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.

3. The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.

4. The proprietor of a place of business who holds it out to the public for entry for his business purposes is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons or by giving a warning adequate to enable them to avoid harm.

5. When the evidence viewed in the light most favorable to plaintiff fails to establish actionable negligence, it is the duty of the trial court to direct a verdict for defendant or render a judgment notwithstanding the verdict if motions therefor are timely and appropriately made.

Kennedy, Holland, DeLacy & Svoboda, L. J. Tierney, Omaha, for appellant.

James J. Fitzgerald, Matthews, Kelley, Fitzgerald & Delehant, Omaha, for appellee.

Caniglia & Inserra, Omaha, for Charles W. Whitcomb.

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

CHAPPELL, Justice.

Plaintiff, Howard E. Crane, known to some as 'Bud,' brought this action against defendants Charles W. Whitcomb and Mrs. Neville Whitcomb, seeking damages resulting from an assault upon plaintiff by defendant Charles W. Whitcomb with a loaded revolver, which occurred about 11 p. m., July 4, 1951, in the street outside of a tavern owned and operated by defendant, Mrs. Neville Whitcomb. Defendants were husband and wife. Plaintiff's amended petition originally sought recovery from defendant, Mrs. Neville Whitcomb, hereinafter generally called defendant, upon the theory of respondeat superior. Thereto she answered, denying generally and specifically plaintiff's allegations with relation to that theory. The pleas of defendant Charles W. Whitcomb hereinafter generally called Whitcomb, are of no importance here because he took no appeal from a verdict and judgment rendered thereon against him. The cause proceeded to trial to a jury, and at conclusion of plaintiff's evidence, defendant's motion to direct a verdict or dismiss plaintiff's action against her for insufficiency of the evidence was overruled. At conclusion of all the evidence the trial court, over appropriate objections made by defendant, sustained plaintiff's motion to amend his amended petition purportedly to conform to the proof and predicate his cause of action against defendant for alleged negligence by her, proximately causing plaintiff's injuries, rather than respondeat superior. The trial court also then overruled defendant's motions for mistrial or new trial, or to direct a verdict or dismiss plaintiff's action against defendant for want of sufficient evidence. Defendant then filed an answer preserving her objection to plaintiff's permitted amendment, denying that she was negligent in any manner as alleged by plaintiff, and alleging that negligence of plaintiff, more than slight, was the proximate cause of his injuries. As to such defendant, the issues were then submitted to the jury upon plaintiff's amended theory of negligence and defendant's answer thereto, including plaintiff's alleged contributory negligence pleaded by her.

With regard to defendant Whitcomb, the court directed a verdict for plaintiff and submitted to the jury only the issue of the amount of damages. The verdict of the jury assessed 'plaintiff's damages at $10,000.00 of which amount both defendant's are jointly liable for $7000.00 and for the remainder of $3000.00 the defendant Charles W. Whitcomb is individually and alone liable,' and judgment was accordingly rendered thereon. Defendant Whitcomb's motion for new trial was overruled, but he did not appeal. Defendant Mrs. Neville Whitcomb's motion for judgment notwithstanding the verdict or in the alternative for new trial, was also overruled, but she appealed. Insofar as important here, she assigned that the trial court erred in failing to direct a verdict at conclusion of all the evidence and in overruling defendant's motion for judgment notwithstanding the verdict. We sustain the assignment. In doing so, we are not required to discuss whether or not the trial court erred in permitting plaintiff to amend as aforesaid. This is true because, as hereinafter observed, the evidence was insufficient in any event to permit any recovery from defendant, Mrs. Neville Whitcomb.

In Umberger v. Sankey, 151 Neb. 488, 38 N.W.2d 21, 22, we held: 'A motion for a directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the evidence.'

In plaintiff's brief it is said: 'We make no contention that Mr. Whitcomb was an 'employee'; we say that he was an agent and that he had the right to and did participate in maintaining good order on the premises.' In that connection, as said in Restatement, Agency, s. 250, p. 559: 'Except as stated in s. 251, a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal's business, unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.' In Nebraska Annotations thereto, s. 250, p. 111, it is said: 'This section states the Nebraska law. Omaha Bridge & Term[inal] Ry. [Co.] v. Hargadine, 5 Neb. Unof[f.] 418, 98 N.W. 1071.' Section 251, p. 560, reads in part: 'A principal is subject to liability for physical harm to the person or the tangible things of another caused by the negligence of an agent who is not a servant: (a) in the performance of an act which the principal is under a duty to have performed with care under the rule stated in s. 214; * * *.' Nebraska Annotations thereto, s. 251, p. 111, says: 'This section states the Nebraska law so far as the first clause is concerned. See cases cited in annotation to s. 214.' Section 214, p. 471, reads: 'A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other agent is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.' Nebraska Annotations thereto, s. 214, p. 98, reads: 'This section is in accord with the Nebraska law. Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 103 N.W. 446, 69 L.R.A. 642, 115 Am.St.Rep. 559, 8 Ann.Cas. 682 * * *.' In such case, on rehearing at 71 Neb. 91, 103 N.W. 446, 69 L.R.A. 642, 115 Am.St.Rep. 559, adhering to the former judgment, it is held: 'The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.'

As held in Davis v. Houghtellin, 33 Neb. 582, 50 N.W. 765, 14 L.R.A. 737: 'A master is liable to third persons for damages resulting from the negligence of his servants, only when the latter is acting within the scope of his employment.' In the opinion, quoting from Morier v. St. Paul, M. & M. Ry. Co., 31 Minn. 351, 17 N.W. 952, 47 Am.Rep. 793, with approval, and citing other authorities, it is said: "Beyond the scope of his employment, the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment; and, in determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is...