Illian v. McManaman

• Decision Date: 27 June 1952
• Docket Number: No. 33164,33164
• Citation: 156 Neb. 12,54 N.W.2d 244
• Parties: ILLIAN v. McMANAMAN.
• Court: Nebraska Supreme Court

Page 244

54 N.W.2d 244

156 Neb. 12

ILLIAN v. McMANAMAN.

No. 33164.

Supreme Court of Nebraska.

June 27, 1952.

Syllabus by the Court.

1. When a statute has been adopted from another state, ordinarily the construction given prior to its adoption by the courts of that state will be followed in this state, in the absence of any indication of a contrary intention on the part of the Legislature.

2. The summary judgment act, sections 25-1330 to 25-1336, R.S.Supp.1951, authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial. The purpose of the statute is not to cut litigants off from their right of trial by jury if they really have issues to try.

3. The issue to be tried on a motion for summary judgment is whether or not there is a genuine issue as to any material fact, and not how that issue should be determined. In considering such a motion as in a motion for a directed verdict, the court should take that view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.

4. In cases which turn on the credibility of witnesses the summary judgment act does not permit a trial by affidavits if either party objects.

5. An extrajudicial admission appearing in the deposition of a party taken before trial is not ordinarily final and conclusive upon him, but it may be competent and admissible as evidence in contradiction and impeachment of his present claim and his other evidence given at the trial, to be given such weight as the trier of fact deems it entitled.

6. A motion for summary judgment is not a substitute for a motion for a directed verdict or for error proceedings taken after full trial.

Warren C. Schrempp, David S. Lathrop, Omaha, for appellant.

Mecham, Stoehr, Moore, Mecham & Hills, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This is an action for damages under the guest statute arising as a result of an automobile accident. The trial court sustained a motion for summary judgment and dismissed the petition. Plaintiff appeals. We reverse the judgment of the trial court and remand.

Plaintiff alleged in her petition that on June 23, 1951, at 1:30 a. m., she was a passenger and guest in defendant's automobile; and that defendant drove his car into a ditch and a bank resulting in personal injuries to her. She alleged defendant's gross negligence in the following particulars: (a) Operating at an excessive rate of speed to wit 50 miles per hour; (b) in failing to observe that the highway turned and continuing in a straight course at a high rate of speed; (c) in driving his automobile at a high rate of speed into a ditch and bank; (d) in operating his automobile while under the influence of intoxicating liquor; and (e) in failing to stop or turn in time to avoid the accident. She alleged her injuries and damages.

Defendant answered, denied generally, denied negligence, and alleged his due care; alleged that plaintiff assumed the risk of sustaining said alleged injuries; and alleged plaintiff's contributory negligence as the proximate cause. For reply plaintiff denied every allegation of new matter in the answer.

After the answer was filed, defendant took plaintiff's deposition subject to a stipulation that any and all objections could be made at the time of trial with the same force and effect as if made at the time of the taking of the deposition; that the shorthand notes could be transcribed outside of the presence of the witness; and waived the signature of the witness and notice of the filing of the deposition.

Plaintiff testified as follows in the deposition, and many of the responses were in answer to leading questions. She is a single woman, 20 years of age, a stenographer, and had known defendant since early childhood. She was living in Omaha. Plaintiff knew that defendant drank 'quite a bit.' She had drunk with him socially; she had ridden with him in a car before and thought he drove rather recklessly when he had been drinking; that she was always afraid to ride with him, but he gave her to understand he did it to scare her; and on occasion she had asked him not to drive so fast, but he persisted and she had quit asking him. On the night in question, defendant asked her to go to Bellevue to get his car, where it had been repaired; and she agreed on condition there was to be no drinking and that she would be home early. The defendant and two friends came in the car of one of them for her at 9:30 p. m. They started for Bellevue, south of Omaha. They stopped at a beer tavern in Omaha where the three men went in at 10 p. m. Plaintiff remained outside in the car. Defendant and the others came out at different times, she could smell beer on them, she knew that defendant had been drinking, but did not know how much. The party left that tavern at 11:30 p. m., and started for Bellevue. They brought two 'six-packs' of beer from the tavern. The defendant and one of the men each drank two or three cans on the way to Bellevue. Plaintiff refused to drink and the men got insulting by asking her to do so.

At Bellevue they located defendant's car, and then went to a bar where defendant and one of the men were from 12 midnight to 1 a. m. One of the men was asleep in the car, 'passed out.' Plaintiff could see in the bar but did not know what the two were drinking. They came out at 1 a. m. Plaintiff could 'tell they had been drinking quite a bit. They were loud and still insulting. 104 Q. In other words, from the time they were at that bar in Omaha up to that time, about all they did was merely continue what, very obviously, was some good, heavy drinking; is that right? A. Yes.'

The four then drove to where defendant's car was and defendant went in to see the mechanic, taking 'some beer' in with him. He remained there 15 or 20 minutes. The defendant came out and the two other men left in the car that had been used up to that time. Plaintiff and defendant started for Omaha in his car. He had no beer with him. They did not get on the highway to Omaha, but drove around for some time making several turns and finally got on a straight, level, two-lane highway, apparently seeking the highway to Omaha. The distance of this journey is not shown, except that one part of it was a mile or more.

Defendant was driving on this highway at about 50 miles per hour, and they came to a dead end where a turn was necessary. Apparently defendant did not see it, plaintiff did just before the accident and when she realized that defendant did not, she called it to his attention--but too late and the accident followed.

Plaintiff answered 'That's right' in answer to a question that from 10 p. m. until seeing the mechanic 'he had been drinking beer just most of the time. 116 Q. All three of them obviously had had more to drink than you felt they should have had; is that right? A. Than they should have had.' As of the time of the accident, she was asked: '160 Q. Did he obviously appear to be under the influence, then, at that time? A. Yes. * * * 164 Q. You would say, then, that the reason he should have been going 35 was because of his drinking or because of the condition of the road at that place? A. Both.'

After the accident, police came, asked defendant what he had been drinking, checked his car, and asked what he had done with the bottle. Defendant went to spend the night with relatives in Bellevue and plaintiff was taken to Omaha.

Defendant filed the deposition. He then moved for judgment for the reason that the pleadings and deposition show that plaintiff was guilty of more than slight contributory negligence as a matter of law and assumed the risk of the injury.

Plaintiff filed an affidavit reciting that when she entered defendant's automobile, his acts, conduct, and speech were not such as to indicate to a reasonably prudent person that he was under the influence of intoxicants to such an extent as would affect his driving ability; that she did not then realize that he was under such influence sufficient to make it dangerous for her to ride with him as a passenger; that the first time she realized it was just before the accident happened, when she realized he had not seen the turn in the road; and that answers to questions 104, 116, and 164 (hereinbefore quoted) were statements of her present conclusions taking into consideration what had happened and did not reflect her state of mind at the points of time during the evening in question. The matter was argued to the court and taken under submission. Plaintiff was given leave to file additional affidavits.

Plaintiff then filed a second affidavit reciting that defendant had promised her on the night in question that he would not get intoxicated, and that she relied thereon; that in her deposition when she stated she knew defendant was a reckless driver when drinking, she meant that he was reckless if he drank to an extent that made him drunk; that she knew he had been drinking beer but also that he was not drunk; that during the ride from Omaha to Bellevue neither in speech, action, or conduct...