Dickinson v. Lawson, No. 28649.

• Court: Supreme Court of Nebraska
• Writing for the Court: EBERLY
• Citation: 251 N.W. 656,125 Neb. 646
• Docket Number: No. 28649.
• Decision Date: 13 December 1933
• Parties: DICKINSON v. LAWSON.

125 Neb. 646
251 N.W. 656

DICKINSON
v.
LAWSON.

No. 28649.

Supreme Court of Nebraska.

Dec. 13, 1933.

Syllabus by the Court.

1. A demurrer ore tenus is recognized by this court as permissible practice, and if the pleading to which it is addressed is totally defective, it is error to admit any evidence under the allegations thereof.

2. Questions relating to the sufficiency of the petition should be determined before the cause comes on for trial to a jury.

3. Where an objection that a petition does not state a cause of action is interposed for the first time during the trial of a cause, or after verdict, the pleading will be liberally construed in the light of the entire record, and, if possible, sustained. In such case, if the essential elements of plaintiff's case may be implied by reasonable intendment from the terms of the pleading assailed, they will be regarded as sufficiently alleged.

4. The court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.

5. Affidavits in support of a motion for new trial examined, and held insufficient, and in the light of the entire record no error was committed by the district court in overruling such motion.

6. “A litigant whose witnesses are absent when his case is called for trial, and who makes no objection then to the trial proceeding on that account, cannot be heard to complain in his motion for a new trial that he was prejudiced by the trial taking place when his witnesses were absent.” Kreamer v. Irwin, 46 Neb. 827, 65 N. W. 885.

7. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price, which may be made payable in any personal property.

8. Evidence examined and transaction in suit held to be a “sale” within the purview of the Nebraska Uniform Sales Act.

9. If a party conceals a fact pertaining to an existing charge or incumbrance upon personal property, in the sale of which he is then engaged, and which is material to the transaction, and peculiarly within his own knowledge, knowing that the other party acts on the presumption that no such fact exists, it is as much of a fraud as if the existence of such fact were expressly denied, or the reverse thereof expressly stated.

10. Every person legally responsible is liable for a tort committed by him which is the proximate cause of an injury to another.

11. The degree of participation in the

[251 N.W. 657]

commission of an actionable tort does not affect the extent of liability, and all persons who instigate, promote, encourage, advise, countenance, co-operate in, aid, or abet the commission of an actionable wrong by another are liable as principals to the party injured to the same extent and in the same manner as if they had performed the wrongful act themselves.

12. Evidence examined, and held to sustain the judgment for damages as awarded by the district court.

Appeal from District Court, Wheeler County; Horth, Judge.

Action by Oscar D. Dickinson against Fred J. H. Lawson. From an adverse judgment, defendant appeals.

Affirmed.

Davis & Vogeltanz, of Ord, and F. J. H. Lawson, of Ericson, for appellant.

A. L. Bishop, of Bartlett, and Lanigan & Lanigan, of Greeley, for appellee.

Heard before GOOD and EBERLY, JJ., and MESSMORE, RAPER, and YEAGER, District Judges.

EBERLY, Justice.

This is an action in tort. The amended petition, on which the case was tried, alleges in substance that on November 24, 1929, in the place of business of plaintiff at Spalding, Nebraska, an exchange was made by and between the plaintiff and defendant of a new Ford truck, then owned by the plaintiff, and “estimated to be of the value of $715,” for a new Whippet car, then owned and offered for trade by the defendant “at an agreed valuation of $688” and the additional sum of $25 in cash paid by the defendant; that the exchange was completed by the delivery of the property and payment of the money involved; that at the time of the exchange the Whippet car was mortgaged, a fact which defendant knowingly, wilfully and fraudulently concealed; that plaintiff by reason thereof was subsequently compelled to and did pay the sum of $271.81 to secure the release of this mortgage, which sum constitutes the damage suffered by him occasioned by the wrongful concealment mentioned.

Defendant in his answer denies generally the allegations of the petition, but in substance admits that the plaintiff is engaged in the automobile and garage business at Spalding, Nebraska, and was so engaged on November 24, 1929; that on the day mentioned defendant accompanied one Charles E. Anderson to plaintiff's place of business; that an exchange of the Ford truck for the Whippet car was then and there made; defendant admits giving the check of $25 to plaintiff, but alleges that the same was a loan to Charles E. Anderson and at the latter's request was drawn payable to plaintiff, and was not paid to plaintiff by defendant as the difference in value in a trade between plaintiff and defendant; that the trade or exchange was in truth and in fact then and there made solely between said Charles E. Anderson and plaintiff, in which defendant had no part; and defendant expressly denies that he was then and there the owner of the Whippet car. These allegations were put in issue by reply. The cause was tried to a jury and at the conclusion of the evidence each party moved for an instructed verdict. The district court thereupon withdrew the cause from the jury and entered judgment for plaintiff as prayed. Defendant thereupon presented his motion for a new trial, and, from the order of the trial court overruling the same, appeals.

In his original brief on appeal the appellant, who is herein referred to as defendant, assigns nine errors as “Relied on for Reversal.” Three of these are predicated on the alleged insufficiency of the amended petition; four, in effect, challenge the sufficiency of the evidence to sustain the judgment; one charges that the trial court erred in not sustaining defendant's motion for a new trial; and the last error assigned is based on the refusal of the trial court on motion to make the amended petition more definite and certain by requiring the plaintiff to allege whether the defendant represented to the plaintiff that he was the owner of the Whippet car which the plaintiff traded for.

The defendant first contends that the amended petition upon which the case was tried is defective for want of necessary allegations relative to fraud, and that the district court erred in overruling his oral objection to the introduction of evidence on the ground that “the petition does not state facts sufficient to constitute a cause of action against the defendant.” This objection was first tendered after the jury had been duly impaneled and after a witness had been sworn and the reception of testimony commenced.

[1] A demurrer ore tenus is recognized by this court as permissible practice, and if the pleading to which it is addressed is totally defective, it is error to admit any evidence under such pleading. Curtis & Co. v. Cutler, 7 Neb. 315;Ball v. La Clair, 17 Neb. 39, 22 N. W. 118.

In the instant case the record discloses that no demurrer provided for by our Civil Code was tendered by the defendant, and the challenge to the sufficiency of the petition, upon which the defendant now relies, was first made as above set forth.

[2] But the conclusion is quite obvious that “questions relating to the sufficiency of the

[251 N.W. 658]

petition should be determined before the cause comes on for trial before a jury.” Marvin v. Weider, 31 Neb. 774, 48 N. W. 825.

[3] This court is committed to the rule: “Where an objection that a petition does not state a cause of action is interposed for the first time during the trial of a cause or after verdict, the pleading must be liberally construed, and, if possible, sustained.” Johnston v. Spencer, 51 Neb. 198, 70 N. W. 982. See, also, Peterson v. Hopewell, 55 Neb. 670, 76 N. W. 451;Fire Ass'n of Philadelphia v. Ruby, 60 Neb. 216, 82 N. W. 629;First Nat. Bank of Cobleskill v. Pennington, 57 Neb. 404, 77 N. W. 1084;Parkins v. Missouri P. R. Co., 76 Neb. 242, 107 N. W. 260;Welch v. Adams, 87 Neb. 681, 127 N. W. 1064;Donovan v. Chitwood, 116 Neb. 683, 218 N. W. 587;Harnett v. Holdrege, 5 Neb. (Unof.) 114, 97 N. W. 443.

In the application of the rule above quoted the petition or pleading so assailed will be construed liberally in the light of the entire record. National Fire Ins. Co. v. Eastern Building & Loan Ass'n, 63 Neb. 698, 88 N. W. 863;Punteney-Mitchell Mfg. Co. v. Northwall Co., 66 Neb. 5, 91 N. W. 863.

And we have also said on this subject that, “if the essential elements of plaintiffs' case may be implied from its terms [the terms of the pleading assailed] by reasonable intendment, they will be regarded as alleged sufficiently.” Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540, 541, 98 N. W. 837, 100 N. W. 930, 103 N. W. 455. See, also, Dailey v. Burlington & M. R. R. Co., 58 Neb. 396, 78 N. W. 722;Parker v. Omaha Packing Co., 85 Neb. 515, 517, 123 N. W. 1026.

And even then the determinative test may finally be found in the application of the statutory rule: “The court in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.” Comp. St. 1929, § 20-853. See, also, Waldron v. McBride, 79 Neb. 429, 112 N. W. 619;Welch v. Adams, 87 Neb. 681, 127 N. W. 1064;Fitzpatrick v. Hines, 105 Neb. 134, 179 N. W. 410;Bryan v. Manchester, 111 Neb. 748, 197 N. W. 425.

A careful consideration of defendant's contention as to the sufficiency of the amended petition attacked, in the light of the foregoing authorities, confirms the conclusion that the trial court committed no error in overruling the objection urged, and that we are required to now treat this pleading as ample and...