Dixon v. Coffey
| Decision Date | 16 December 1955 |
| Docket Number | No. 33820,33820 |
| Citation | 161 Neb. 487,73 N.W.2d 660 |
| Parties | Mary DIXON, Appellee, v. William COFFEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a hearing upon motion for new trial, the alleged errors that may be considered in the district court are those which appear in the record of the proceedings which resulted in the verdict and judgment about which complaint in made and which are called to the attention of the trial court by the motion or appropriate pleading.
2. Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.
3. The district court has the power and is required to consider and determine motions for a new trial by the exercise of its judicial discretion, which means the application of statutes and legal principles to all of the facts in a case.
4. The power of judicial discretion authorizes and requires the court to determine the question as to whether or not a legal reason exists for the granting of a new trial. If a legal reason exists and the complaining party makes his application in writing within the time fixed by statute, the court has no discretion in the matter and the motion must be sustained. If a legal reason does not exist, the court has no discretion in the matter and the motion must be denied.
5. Under the statute providing that every action must be prosecuted in the name of the real party in interest, if the insurance paid by an insurer covers only a portion of the loss, the right of action against a wrongdoer who caused the loss remains in the insured for the entire loss, and the action must be brought by him in his own name.
6. As a general rule, an actual offer of evidence upon an issue is not necessary in order to preserve the question for review if the trial court has theretofore ruled that no proof upon that issue will be received.
7. The law of amendments should be liberally construed in order to prevent failure of justice and, except as otherwise provided by statute or rule of court, a party seeking to amend the pleadings is not required to do so in any particular form or manner nor to support his application therefor by affidavit if the court is in some appropriate manner informed of the nature and purpose of the proposed amendments.
8. Amendments of pleadings should be allowed whenever such amendments appear to be in furtherance of justice and when such amendments make a continuance necessary or otherwise increase the costs, such terms should be imposed as are just under the circumstances.
9. When the amount of damages allowed by the jury is clearly inadequate under the evidence in the case, it is error for the trial court to refuse to set aside such verdict. However, where the recovery awarded is sufficient to probably do justice to the injured party, an appellate court should not interfere.
Russell & Colfer, McCook, Robert A. Barlow, Jr., Davis, Healey, Davies & Wilson, Lincoln, for appellant.
John Stevens, Beaver City, Stevens & Scott, McOook, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
Plaintiff Mary Dixon brought this action against William Coffey seeking recovery for personal injuries and damages to her car, alleged to have been proximately caused by negligence of defendant. On trial to a jury it returned a verdict, awarding plaintiff $180 for medical expenses, loss of earnings, pain and suffering, and personal injuries, which were the only elements of damage submitted to the jury for its determination. Thereafter plaintiff filed a motion for new trial which, among other things, substantially alleged: (1) That the trial court abused its discretion and erred in refusing to permit plaintiff to amend her petition before trial in order to plead the full amount of damages to her car and in refusing to submit such issue to the jury for its determination; and (2) that the recovery was inadequate to compensate plaintiff for her personal injuries and damages. Upon such grounds plaintiff's motion was sustained, the verdict and judgment rendered were vacated, and plaintiff was granted a new trial. Therefrom defendant appealed, assigning in substance that the trial court erred in granting a new trial. We conclude that defendant's assignment should not be sustained.
With regard to the issues so raised, there are well-established rules. In Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772, 774, this court held: 'The alleged errors that may be considered in the district court are those which appear in the record of the proceedings which resulted in the verdict and judgment about which complaint is made and which are called to the attention of the trial court by the motion or appropriate pleading.
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'Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.
'The district court has the power and is required to consider and determine motions for a new trial by the exercise of its judicial discretion.
'As used in this connection judicial discretion means the application of statutes and legal principles to all of the facts of a case.
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'That rule does not authorize the district court to invade the province of the jury and to set aside the verdict and grant a new trial because the court arrived at a different conclusion than the jury on the evidence that went to the jury.
'Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.' See, also, Myers v. Platte Valley Public Power & Irr. Dist., 159 Neb. 493, 67 N.W.2d 739.
Plaintiff's petition substantially alleged that on May 25, 1954, during daylight hours and outside of the corporate limits of any city, she was driving her car on highway No. 89 to the right of the center thereof, when defendant driving his car overtook plaintiff and attempted to pass her, but unlawfully and negligently turned back to the right side of the highway before he was sufficiently clear of plaintiff's car, and in doing so struck plaintiff's car suddenly and violently, disabling and hurling it off the highway toward the right causing plaintiff to lose control thereof, as a result of which plaintiff's car, after crossing a roadside ditch, struck a pole, wrecking her car and causing her to be thrown against the side of her car, as a result of which she suffered pain, personal injuries, impairment of efficiency in her work, and was required to expend $84.50 for necessary medical treatment. Plaintiff also alleged that as a result of defendant's negligence her car was damaged $50 over and above the insurance recovered by her. She prayed judgment against defendant for such damages and costs.
Thereafter defendant filed a motion to make plaintiff's petition more definite and certain by setting forth the nature and extent of the damages to her car, the fair and reasonable value of the repairs to same, and the amount received from her insurance company. Subsequently such motion was heard and overruled, whereupon, as requested by defendant, he was given 20 days to further plead. Thereafter defendant filed an answer denying generally and alleging that at the time and place alleged plaintiff and defendant were driving their respective cars east on highway No. 89 and a collision occurred west of Beaver City when plaintiff, having passed defendant and returned to the right side of the highway, sharply reduced her speed. That thereupon defendant overtook and passed her, but upon returning to the right side of the highway ahead of plaintiff she suddenly turned somewhat to the left and increased her speed, causing the left front of her car to collide with the right rear of defendant's car, after which plaintiff failed to gain control of her car or bring it to a stop, but accelerated its forward motion so that it went off the highway into the south roadside ditch, collided with a fence and breaking off posts, then continued east, where it collided with and broke off a telephone pole, and stopped some distance east therefrom. Defendant admitted that both cars sustained some damage, but alleged that the larger portion of damages to plaintiff's car was caused by her failure and inability to reduce her speed and control her automobile. The answer further alleged that if plaintiff suffered any personal injuries they were minor, not disabling so as to prevent her from carrying on a livelihood, as she had fully recovered from any injuries sustained. Defendant prayed for dismissal of plaintiff's petition. Thereafter plaintiff filed a reply in the nature of a general denial.
Subsequently, on February 21, 1955, the day before a trial upon the merits, a pre-trial hearing was held upon the alleged items of damage to plaintiff's car, whereat the trial court ruled and ordered that as pleaded the damage alleged in plaintiff's petition was not a proper item of damage and that no evidence would be permitted to be adduced...
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