Dunn v. Hemberger, 86-661
| Decision Date | 21 October 1988 |
| Docket Number | No. 86-661,86-661 |
| Citation | 430 N.W.2d 516,230 Neb. 171 |
| Parties | Harold DUNN, Appellant and Cross-Appellant, v. Edwin J. HEMBERGER et al., Appellees, Eugene Hemberger, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Motions for New Trial: Time: Appeal and Error. Under Neb.Rev.Stat. § 25-1142(6) (Reissue 1985), a motion for new trial is authorized after a judgment notwithstanding the verdict and, during pendency of such motion, suspends or tolls the time limit to comply with requirements for an appeal to the Nebraska Supreme Court in accordance with Neb.Rev.Stat. § 25-1912 (Reissue 1985).
2. Judgments: Verdicts: Directed Verdict: Trial. A motion for judgment notwithstanding the verdict may be sustained and a judgment entered in accordance with a previous motion for directed verdict only where at the close of all the evidence a motion for a directed verdict was made, which motion should have been sustained but was overruled and the case submitted to the jury, which returned a verdict adverse to the movant.
3. Judgments. On a motion for judgment notwithstanding the verdict, the movant is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence.
4. Agency: Words and Phrases. An agency is a fiduciary relationship, resulting from one person's manifested consent that another may act on behalf and subject to the control of the person manifesting such consent, and, further, resulting from another's consent to so act.
5. Partnerships: Joint Ventures. The absence of mutual interest in the profits or benefits is conclusive that a partnership or joint venture does not exist.
D. Steven Leininger, of Luebs, Dowding, Beltzer, Leininger, Smith & Busick, Grand Island, for appellant and cross-appellant Dunn.
John A. Wagoner and Robert W. Wagoner, Grand Island, for appellant and cross-appellee Hemberger.
James D. Smith, of Brock, Seiler & Smith, Hastings, for appellee Norbert Hemberger.
When the truck-pickup collision occurred, Edwin Hemberger was driving a truck owned by his parents, Norbert and Madeline Hemberger, and was hauling grain harvested from fields of his uncle, Eugene Hemberger. While transporting grain, Edwin ran a stop sign and struck a pickup driven by Harold Dunn, resulting in Dunn's bodily injury. Dunn sued Edwin (driver), Eugene (uncle), and Edwin's parents, Norbert and Madeline. Dunn based his claims on Edwin's negligent operation of the truck; an agency relationship between Eugene and Edwin; the family purpose doctrine regarding the truck supplied by Edwin's parents; and a farming joint venture between Eugene and Norbert, brothers who have separate farms in addition to their jointly leased farmland.
At the time of the accident, Norbert owned 240 acres of farmland, Eugene owned 400 acres, and together they leased 300 acres from Louise Blind. Although each raised some cattle, Norbert and Eugene primarily grew corn, wheat, and other grain crops. Each planted his personally selected crop on his own land, individually bore the expenses of growing and harvesting those crops, and separately received any profit from his crop. Norbert and Eugene mutually determined what crops were planted on the rented tract and jointly owned a combine and grain wagon used for harvesting both their individually owned fields and their jointly leased land. The brothers equally shared income and expenses in farming their rented land.
At harvest time, Norbert, Eugene, and members of their families worked together to harvest each brother's fields and the rented property. Dryness determined the priority of harvesting the fields. Generally, Norbert drove the combine, which Eugene followed with the grain wagon. Other family members drove trucks in hauling grain from the fields to storage bins on his farm, while the harvest from Norbert's fields was hauled to bins on Norbert's farm or taken to the local elevator. Grain from the leased land was usually taken to the local elevator.
On November 10, 1982, the Hemberger families were involved in harvesting. As usual, Norbert was running the combine, and Eugene was following with the grain wagon. Norbert's wife, Madeline, was not taking part in the harvest. However, Edwin and Eugene's wife and son were helping to haul corn from the harvested field to storage facilities. Edwin, age 22, had been away at college and, thus, was taking part in the family harvest for the first time in several years. Although Edwin had been working for a seed corn company during the summer, his job ended around the middle of October, allowing Edwin to participate in the harvest.
In the morning of November 10, Hembergers had been harvesting corn from one of Norbert's fields. After their noon meal, the family moved to Eugene's fields. Using a truck owned by Norbert and Madeline, Edwin was hauling corn from Eugene's field to a bin on Eugene's farm. Edwin knew the location of Eugene's grain bins and had not been given any specific instruction about hauling from the field to the bin. In hauling grain, Edwin had been traveling the same route all afternoon. Although Eugene could have dictated the route or destination for the grain, he did not explicitly direct Edwin's hauling the harvested corn. After several trips, Edwin was again on his way from the field to Eugene's bin with a load of corn, when he failed to halt the truck at a stop sign and collided with Dunn's pickup.
On the basis of the theories characterized above, Dunn sued Edwin, Eugene, and Edwin's parents, Norbert and Madeline.
The court granted Madeline's motion for a directed verdict, removing her from the action, and granted Dunn's motion for a directed verdict against Edwin on liability. The court refused to submit the question of a joint venture between Norbert and Eugene, and refused to direct a verdict for Dunn on the family purpose doctrine to impose liability on Norbert but submitted that question to the jury. The court also submitted the agency question, notwithstanding Dunn's request for a directed verdict on that question. On May 23, 1986, the jury returned its verdict against Edwin alone for $115,000.
On May 28, Dunn filed a motion for judgment notwithstanding the verdict (judgment n.o.v.), namely, judgment against Norbert on account of the family purpose doctrine and judgment against Eugene as the result of a principal-agent relationship with Edwin. As an alternative, Dunn requested a new trial against Norbert and Eugene, contending that the court erred by its refusal to submit the question of a joint venture between Norbert and Eugene. On July 10, the court granted judgment n.o.v. to Dunn, stating: "It now appears ... that the court was in error" in denying a directed verdict for Dunn on the On July 16, Eugene moved for a new trial, alleging that the court's setting aside the verdict was not "supported by law" and that judgment n.o.v. against Eugene was "contrary and lacks support from the evidence." As an alternative to a new trial, Eugene asked the court to reinstate the verdict favorable to Eugene, which the court had vacated in conjunction with entry of the judgment n.o.v. for Dunn and against Eugene.
agency question involving Eugene and Edwin. The trial court expressed that, as a matter of law, the agency relationship had been evidentially established for imputation of Edwin's negligence and, therefore, Eugene's liability to Dunn. The court entered judgment for Dunn and against Eugene for $115,000, corresponding to the verdict against Edwin. The court then refused to grant judgment against Norbert or a new trial pursuant to Dunn's motion.
On August 11, Dunn filed his notice for appeal to this court. After Eugene's motion for new trial or reinstatement of the verdict was overruled on August 20, Eugene filed his notice of appeal to this court on August 25. Although, generally, according to our rules, Eugene would be designated as an appellee, under the somewhat unusual circumstances of this appeal, we have permitted him to be shown as an appellant.
In seeking dismissal of Eugene's appeal, Dunn contends that Eugene has not filed a notice of appeal within the time allowed by Neb.Rev.Stat. § 25-1912(1) (Reissue 1985), which provides:
The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court ... shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within one month after the rendition of such judgment or decree, or the making of such final order, or within one month from the overruling of a motion for a new trial in said cause, a notice of intention to prosecute such appeal [and] by depositing with the clerk of the district court the docket fee required by law in appeals to the Supreme Court.
In 1986, § 25-1912 was amended, effective January 1, 1987, by changing "one month" to "thirty days" in reference to the time for filing the notice of appeal and appellate docket fee. See § 25-1912(1) (Cum.Supp.1986). The 1986 amendment also provided for suspension of judgment, pending disposition of a timely filed motion for new trial or a judgment n.o.v. See § 25-1912(2) (Cum.Supp.1986). Those changes by the 1986 amendments of § 25-1912 are irrelevant to disposition of the jurisdictional question at hand in view of the effective date of the amendments after Eugene Hemberger had complied with statutory requirements of § 25-1912 (Reissue 1985) for an appeal to the Supreme Court of Nebraska.
Neb.Rev.Stat. § 25-1142 (Reissue 1985), which has not been amended...
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