Hale v. Taylor, 39139

• Decision Date: 18 July 1974
• Docket Number: No. 39139,39139
• Citation: 192 Neb. 298,220 N.W.2d 378
• Parties: Beverly J. HALE, Appellant, v. Harold TAYLOR, Appellee.
• Court: Nebraska Supreme Court

Page 378

220 N.W.2d 378

192 Neb. 298

Beverly J. HALE, Appellant, v. Harold TAYLOR, Appellee.

No. 39139.

Supreme Court of Nebraska.

July 18, 1974.

Syllabus by the Court

1. The constitutionality of a legislative act must be raised at the earliest opportunity consistent with good pleading and orderly procedure, or it will be considered as waived.

2. A summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

3. The motor vehicle guest statute, section 39--740, R.R.S.1943, is applicable to the operation of a motor vehicle upon private property as well as upon public highways.

4. The question of whether a person attempting to enter a motor vehicle is a guest within the meaning of section 39--740, R.R.S.1943, is generally one for determination in each individual case. If the evidence is undisputed, or such that minds of men could not reasonably arrive at any other conclusion, the question is one for decision by the court as a matter of law; otherwise, it is a question for the jury to decide as other issuable facts in the case.

Richard D. Myers of Matthews, Kelley, Cannon & Carpenter, P.C., Omaha, for appellant.

Wayne J. Mark of Fraser, Stryker, Veach, Vaughn & Meusey, P.C., Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and ZEILINGER, District Judge.

ZEILINGER, District Judge.

Plaintiff brought suit for personal injuries allegedly sustained as a result of defendant's negligent operation of a motor vehicle. Defendant moved for a summary judgment contending that plaintiff was a guest passenger within he meaning of section 39--740, R.R.S.1943, and that, there fore, defendant was entitled to judgment as a matter of law. The District Court held that as a matter of law plaintiff was a guest passenger and could not, recover against defendant for defendant's simple negligence because of the motor vehicle guest statute, section 39--740, R.R.S.1943. The District Court found there were no issues of fact for determination by trial and granted defendant's motion for summary judgment. Plaintiff filed a motion for a new trial contending that the decision and judgment were contrary to the evidence and contrary to law and including for the first time in the case the contention that section 39--740, R.R.S.1943, violates the Constitutions of the United States and the State of Nebraska. Plaintiff appeals from the overruling of her motion for new trial. Plaintiff contends that the District Court erred in finding that there were no material issues of fact to be determined; in finding that plaintiff was, as a matter of law, a guest passenger; in determining that section 39--740, R.R.S.1943, was applicable to the facts before the court; and in failing to hold section 39--740, R.R.S.1943, to be unconstitutional. In her amended petition plaintiff did not allege that the negligence of defendant was gross.

The undisputed evidence consists of plaintiff's deposition testimony which is in substance as follows:

On November 1, 1970, the plaintiff, Beverly J. Hale, was injured in Omaha, Douglas County, Nebraska, when she was struck by a vehicle being operated by defendant, Harold Taylor. Plaintiff was the natural daughter of defendant's wife. Plaintiff, defendant, and defendant's wife had made plans to dine together on the evening of November 1, 1970. Defendant and defendant's wife drove to plaintiff's home at 1138 South 30th Avenue in Omaha, Nebraska, for the purpose of picking up and transporting plaintiff to dinner. Defendant at that time was operating a motor vehicle owned by him. Defendant drove his automobile into plaintiff's driveway, parked his vehicle, and honked the horn. Plaintiff heard the horn honking and walked out of her residence. Plaintiff observed defendant behind the steering wheel of the vehicle and defendant's wife seated to the right of the defendant in the front seat. Plaintiff went to the right rear of defendant's vehicle, which was a four-door vehicle, and plaintiff saw that the right rear seat was occupied by tools and equipment. Plaintiff walked around behind the vehicle to the left rear door. Plaintiff opened the left rear door of defendant's vehicle to some degree and while her feet were both on the ground defendant's vehicle was backed up in a sudden and jerking motion, knocking plaintiff to the ground, and resulting in injuries to plaintiff.

Plaintiff attempted to raise the constitutionality of the guest statute by an amendment to her motion for new trial. No allegation of unconstitutionality appears in the amended petition. Defendant definitely relied on the guest statute in his answer. Plaintiff's reply simply denies that plaintiff was a guest passneger and does not allege unconstitutionality of the statute. No issue of unconstitutionality was before the District Court when the motion for summary judgment was presented and determined. Section 25--1142, R.R.S.1943, provides for motions for new trial and its first sentence reads: 'A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or decision by the court.' Plaintiff's motion for new trial asked the District Court to determine a new issue rather than to reexamine an issue previously decided. A new issue is not a ground for the granting of a motion for new trial. Section 25--1142, R.R.S.1943. In Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626, the court said: 'It is a general rule that the constitutionality of a legislative act must be raised at the earliest opportunity consistent with good pleading and orderly procedure, or it will be considered as waived.' In Norlanco, Inc. v. County of Madison, 186 Neb. 100, 181 N.W.2d 119, the court quoted with approval from Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, as follows: 'No procedural principal is more familiar to this Court then that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' In Consumers Public Power Dist. v. City of Sidney, 144 Neb. 6, 12 N.W.2d 104, the court said: 'The question of constitutionality not being an issue under the pleadings filed, this court may not properly pass upon it.' In Rhodes v. Continental Ins. Co., 180 Neb. 794, 146 N.W.2d 66, appellant contended that he had raised the issue of the constitutionality of a statute in his oral argument on a demurrer although it was not reflected in the pleadings or the record. The court refused to consider the constitutional question, stating: 'This is a court of review. The rule that the unconstitutionality of a statute cannot be raised for the first time in this court requires that the issue be apparent from the pleadings or be evident from the record made in the trial court. If the plaintiff wished to inject the unconstitutionality of section 44--501, R.R.S.1943, the proper procedure would have been to have amended his petition after the demurrers were sustained.' In the instant case plaintiff did not ask leave to amend. The question of the unconstitutionality of the guest statute is not properly before us on the record in this case. In additioin there has been no compliance with Rule 18 of the 1971 Revised Rules of this court requiring that a party presenting a case involving the constitutionality of a statute must file a written notice thereof with the Clerk of this court at the time of filing his brief and serve a copy of the brief on the Attorney General within 5 days of the filing of the brief with this court.

Section 25--1332, R.R.S.1943, provides that a summary judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Plaintiff submits that there is an issue of fact as to whether plaintiff was riding in the vehicle at the time of the injury, and that, therefore, summary judgment should not have been granted to defendant. In Sunderman v. Wardlaw, 170 Neb. 70, 101 N.W.2d 848, one question presented was whether plaintiff was a passenger or a guest. The trial court ruled as a matter of law that plaintiff was a guest and submitted the case to the jury accordingly. Plaintiff appealed from an adverse verdict contending that her status was a question of fact for the jury. In discussing this question this court quoted from Van Auker v. Steckley's Hybrid Seed Corn Co., 143 Neb. 24, 8 N.W.2d 451, as follows: "If the evidence is undisputed, or such that minds of men could not reasonably arrive at any other conclusion, the question is one for decision by the court as a matter of law; otherwise, it is a question for the jury to decide as other issuable facts in the case." Then the court stated: 'Here the evidence on this material issue is not in dispute and clearly presents an issue for decision by the court as a matter of law.'

In the instant case the evidence was not disputed and there was no genuine issue of material fact to be resolved. A proper case for summary judgment was presented.

Plaintiff contends that the guest statute has no application to the facts in this case because this accident occurred on private property and the guest statute is a regulation governing the use of public roads. The guest statute does not limit itself to public roads. It does not make any mention of where the damages it covers must occur. The statute is concerned only with relationship, not physical location of an occurrence. Section 49--802(8), R.R.S.1943, provides that title heads, chapter heads, section and subsection heads or title, and explanatory notes and cross-references, in the...