Davidson v. Simmons

• Decision Date: 26 June 1979
• Docket Number: No. 42231,42231
• Citation: 203 Neb. 804,280 N.W.2d 645
• Parties: Edwin A. DAVIDSON et al., Appellants, v. Terry SIMMONS, a minor child, et al., Appellees.
• Court: Nebraska Supreme Court

Page 645

280 N.W.2d 645

203 Neb. 804

Edwin A. DAVIDSON et al., Appellants, v. Terry SIMMONS, a minor child, et al., Appellees.

No. 42231.

Supreme Court of Nebraska.

June 26, 1979.

Syllabus by the Court

1. Motions, Rules, and Orders: Judgments: Evidence. A motion for judgment notwithstanding the verdict must 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 which can reasonably be deduced from the evidence.

2. Conspiracy: Proof. A conspiracy need not be established by direct evidence of the acts charged, but may, and generally must, be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purpose to be accomplished.

3. Conspiracy: Damages. A conspiracy between the parties having been once established, whatever was done in pursuance of it by one of the conspirators is to be considered as the act of all, and all are liable irrespective of the fact that they did not actively participate in the particular act and irrespective of the extent to which they benefited by it.

Knapp, State, Yeagley, Mues & Sidwell, Kearney, for appellants.

Jacobsen, Orr & Nelson, Kearney, for appellees Farquhar.

Heard before KRIVOSHA, C. J., McCOWN, CLINTON, and BRODKEY, JJ., and KNEIFL, District Judge.

McCOWN, Justice.

In this action the plaintiff, a police officer, seeks damages for personal injuries sustained when he was struck on the head with a hammer while investigating a burglary. The action was brought against the three minor defendants on allegations that they were engaged in a civil conspiracy to commit the burglary. The parents of the minor defendants were joined under statutory authorization for imposition of limited liability upon parents for willful and intentional infliction of personal injuries by their minor children. The jury found for the plaintiff and against each of the minor defendants, jointly and severally, and assessed total damages at $35,000. That total amount included judgment against the parents of the minor defendants in the total amount of $1,819.22, but not exceeding $1,000 as to each couple, under section 43-801, R.R.S.1943. The District Court entered judgment against the respective defendants in accordance with the verdict. The parental defendants filed motions for judgment notwithstanding the verdict, as did the minor defendant, Robert Farquhar. The District Court overruled all motions for judgment notwithstanding the verdict except the motions on behalf of the minor defendant, Robert Farquhar, and his parents, which motions were sustained. Plaintiff has appealed from the order sustaining the Farquhar motions for judgment notwithstanding the verdict.

On the evening of December 29, 1975, the three minor defendants, Robert Farquhar, age 16, Gregory Evans, age 18, and Terry Simmons, age 16, were riding around in Kearney, Nebraska, in a pickup belonging to Evans' father. After drinking beer and riding around town for approximately an hour, Robert Farquhar suggested that the trio break into a business in order to get some money. He suggested a bookstore because he knew how to get into it. At approximately 1:30 a. m., on December 30, 1975, the trio made an unsuccessful attempt to break into the bookstore. During this attempted break-in Simmons stayed in the pickup and Farquhar and Evans broke into the building housing the bookstore. After some period of time Farquhar and Evans gave up the attempt to get into the bookstore and returned to the pickup at approximately 2 a. m.

The trio then rode around town for approximately half an hour and discussed breaking into some other building. During that time they stopped the pickup in the alley behind a building at 1970 Central Avenue which housed a slot-track racing establishment known as "The Track." Simmons got out of the pickup and broke a window near the back door. Simmons returned to the pickup and the three defendants drove around the vicinity for approximately 15 minutes to make sure there were no people on the street in the area. They then returned to the alley in the rear of "The Track." This time Simmons and Evans broke into the building and Farquhar waited in the pickup.

Shortly before 3 a. m., the Kearney police department was notified that a burglary was in progress at "The Track" and five policemen proceeded to the scene, including the plaintiff, Captain Edwin A. Davidson. Two police officers arrived first and drove into the alley to the rear of the building where they observed a pickup truck directly across the alley from the rear of the building. The engine was running and a person was observed inside the pickup. One of the officers circled around to approach the pickup, but when he reached it the person who had been seen inside the pickup was gone. That individual was later identified as the defendant, Robert Farquhar.

Two more officers arrived at the scene and covered the front of the building. The plaintiff arrived at the rear of the building where he instructed one officer to stand guard while the plaintiff and another officer entered the building through a rear door, which was ajar. As the two officers moved through the building with flashlights, they heard a noise and saw a figure move. As the plaintiff cautiously worked around a doorway he was struck on the head and knocked to his knees. The assailant was subdued after a struggle and was later identified as the defendant, Terry Simmons. Evans was arrested at the front of the building when he broke through a large window. Farquhar was identified and arrested at his home later.

The plaintiff sustained a skull...