Emel v. Standard Oil Company
| Decision Date | 06 July 1928 |
| Docket Number | 26332 |
| Citation | 220 N.W. 685,117 Neb. 418 |
| Parties | WILLIAM H. EMEL, ADMINISTRATOR, APPELLEE, v. STANDARD OIL COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Kearney county: WILLIAM A DILWORTH, JUDGE. Reversed and dismissed.
Judgment of the trial court reversed and action dismissed.
W. H Herdman and C. P. Anderbery, for appellant.
E. B Perry and King & Bracken, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, and HOWELL, JJ., and PROUDFIT and REDICK, District Judges.
This is an action brought by the administrator of a decedent, who sues to recover damages alleged to have been sustained by the death of plaintiff's intestate, and is its second appearance in this court. At the former hearing the case was argued before division No. 2 of the supreme court commission, a judgment of reversal resulting therefrom. After the filing of the opinion by the commission, the plaintiff sought leave to amend his petition in this court and leave so to do was denied. The case was remanded to the district court for further proceedings. Upon the second trial of the action in the district court leave was obtained to amend paragraph 4 of the petition over the objection of the defendant. Paragraph 4 of the original petition alleged:
"That on the 28th day of August, 1922, said Robert Blackburn, while so in the employ of defendant, and while driving said oil truck loaded with oil and gas, again carelessly, negligently and wrongfully invited and permitted the said Johnson A. Emel to enter upon said truck, as had been his custom, for the purpose of accompanying him on a trip distributing oil and gas; that at said time the said Johnson A. Emel, without fault or negligence on his part, fell from said truck to the ground and the wheels of said truck passed over his body, and on account thereof he sustained an injury from the effects of which he died on said same day."
Said paragraph 4 as amended alleges: "That on said 28th day of August, 1922, said Robert Blackburn, while so in the employ of defendant, and while driving said oil truck loaded with oil and gas, again carelessly, negligently and wrongfully invited and permitted said Johnson A. Emel to enter and ride upon said truck, as had been his custom, for the purpose of accompanying him on a trip distributing oil and gas; that defendant, by its employees and servants, after having invited plaintiff's decedent to ride on defendant's said truck, and while well knowing that said child intended to and was about to take hold of and mount said moving truck, thus having ample time, failed to bring said truck to a stop and failed to warn deceased not to attempt to mount said truck, although there was ample time to do so after defendant discovered, or in the exercise of reasonable care should and would have discovered, the presence of said child and his intentions in regard to mounting said truck, but defendant in fact, suddenly, without warning to said child, and while said child still believed his presence was desired by the defendant on said truck, suddenly, wantonly, wilfully and negligently turned and swerved said truck to the north and away from said child and thereby said child missed his hold on said truck and his footing thereon, fell under said moving truck so negligently driven and managed as hereinbefore alleged, and thereby as a result of defendant's negligence said child received injuries of which he died."
The injury of which plaintiff complains occurred on the 28th day of August, 1922. The original petition was filed June 27, 1924, and the amended petition was filed April 15, 1927, and when the amendment was permitted, the defendant objected thereto for the reason that said amended petition stated a new cause of action and was a departure from the original cause of action as pleaded in the original petition, and at the time the amendment was permitted was barred by the statute of limitations. This objection was overruled and the amendment permitted. The second trial of the case resulted in a verdict and judgment for the plaintiff, and a motion for new trial was filed by defendant and overruled.
From the overruling of said motion the defendant prosecutes an appeal to this court, alleging numerous errors in the proceedings had in the trial court. The errors complained of and argued in brief by counsel are: (1) The court erred in overruling defendant's motion for an instructed verdict; (2) the court erred in giving instruction No. 6 to the jury; (3) the court erred in giving instruction No. 12 to the jury; and (4) the court erred in permitting plaintiff to amend his petition, in that said amendment introduced a new cause of action, which was barred by the statute of limitations.
The errors complained of will be discussed in inverse order. Did the court err in permitting plaintiff to amend his petition? If the amendment introduced a new cause of action, then it should not have been permitted, as the statute provides "Every such action shall be commenced within two years after the death of such person." Comp. St. 1922, sec. 1383. A...
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