Kenyon v. Larsen

• Decision Date: 03 January 1980
• Docket Number: No. 42529,42529
• Citation: 286 N.W.2d 759,205 Neb. 209
• Parties: Michael G. KENYON, Appellee, v. Stephen K. LARSEN, Third-Party Plaintiff, Appellee, v. Walt DEYLE, doing business as Walt Deyle Agency, Third-Party Defendant, Appellant.
• Court: Nebraska Supreme Court

Page 759

286 N.W.2d 759

205 Neb. 209

Michael G. KENYON, Appellee, v. Stephen K. LARSEN, Third-Party Plaintiff, Appellee, v. Walt DEYLE, doing business as Walt Deyle Agency, Third-Party Defendant, Appellant.

No. 42529.

Supreme Court of Nebraska.

Jan. 3, 1980.

Syllabus by the Court

1. Election of Remedies. Ordinarily, an election between theories of recovery will not be required unless the theories are so inconsistent that a party cannot logically choose one without renouncing the other.

2. Trial. The trial court has broad discretion over the general conduct of a trial.

3. Mistrial: Appeal and Error. A motion for a mistrial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed in the absence of a showing of an abuse of discretion.

4. Insurance: Contracts. It is the duty of an insured to advise the agent as to the insurance he wants, including the limits of the policy to be issued.

5. Insurance: Brokers: Agency: Negligence. There must be causation between the negligence of the insurance broker or agent and the damage to his principal.

6. Insurance: Brokers: Damages: Negligence. The measure of damages for the loss caused by the negligence of the broker in failing to obtain insurance is the amount that would have been due under the policy if it had been obtained by the broker.

Wagoner & Wagoner, Grand Island, for appellant.

Donald J. Loftus, P. C., Kearney, for appellee Kenyon.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

BOSLAUGH, Justice.

This action was commenced in 1975 by the plaintiff, Michael G. Kenyon, to recover the damages he sustained on June 16, 1971, in a collision between a motorcycle on which he was a passenger and a 1966 Chevrolet automobile owned and operated by the defendant, Stephen K. Larsen. In 1976 the defendant filed a third-party petition against Walt Deyle, alleging that the third-party defendant Deyle had breached an oral agreement to obtain automobile liability insurance from the Great Central Insurance Company for Larsen.

On December 7, 1976, the defendant Larsen filed a petition in bankruptcy with Kenyon listed as an unsecured creditor. Larsen was subsequently adjudicated a bankrupt and a discharge was entered on March 15, 1977. The trustee in bankruptcy disclaimed any interest in the claim of Larsen against Deyle. On May 20, 1977, the bankruptcy court authorized Kenyon to proceed with the litigation against Larsen and Deyle, but enjoined Kenyon from levying upon any asset of Larsen except as involved in the claim of Larsen against Deyle. A stay which the trial court had ordered pending the bankruptcy was dissolved, and the trial court ordered the claim of Kenyon against Larsen be tried separately from the claim of Larsen against Deyle. The claim of Kenyon against Larsen then proceeded to trial.

The trial of the claim of Kenyon against Larsen resulted in a judgment in favor of Kenyon in the amount of $20,000 and costs on November 1, 1977. The judgment was affirmed by this court on June 27, 1978.

On December 2, 1977, Larsen assigned his claim against Deyle to Kenyon, reserving, however, any amounts expended by him as attorney's fees in the Kenyon v. Larsen case and the Larsen v. Deyle case which might be recovered as damages in the case against Deyle. Upon the motion of Kenyon, the trial court substituted Kenyon as the third-party plaintiff in the action against Deyle.

The amended petition filed by Kenyon alleged two theories of recovery. The petition alleged that Deyle had agreed to obtain automobile liability insurance for Larsen but negligently failed to obtain insurance for him, and that Deyle had breached an agreement to obtain automobile liability insurance for Larsen. The case was submitted to the jury upon both theories. The jury returned a verdict for the plaintiff Kenyon in the amount of $23,576.85 on the theory of negligence. The defendant Deyle has appealed. There is no cross appeal.

The defendant Deyle contends the trial court erred in substituting Kenyon as the third-party plaintiff; in failing to require Kenyon to elect upon which theory he was proceeding; in submitting the breach of contract theory of recovery to the jury; in overruling the defendant's motion for a mistrial; and in failing to limit the plaintiff's recovery to the limits of the policy which the defendant could have obtained for Larsen.

The defendant Deyle contends that Kenyon should not have been substituted as the third-party plaintiff in the claim against Deyle because the assignment from Larsen to Kenyon was conditional. In the assignment Larsen reserved an amount equal to the amount he had expended for attorney's fees. The defendant argues that because the assignment was conditional, Larsen retained an interest in the claim, was the real party in interest, and the action should have proceeded in his name. There are several reasons why this contention cannot prevail.

Kenyon was a judgment creditor of Larsen. Although Larsen had been adjudged to be a bankrupt and a discharge had been entered, the trustee disclaimed any interest in the claim against Deyle and the bankruptcy court authorized Kenyon to proceed on the claim of Larsen against Deyle. Although the claim of Larsen against Deyle was personal to Larsen and could not be enforced in a direct action by Kenyon against Deyle, it could be reached by Kenyon in a proceeding in aid of execution. See, Peak v. Bosse, 202 Neb. 1, 272 N.W.2d 750; Royal Ind. Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 229 N.W.2d 183; § 25-1564, R.R.S.1943; Emerson-Brantingham Implement Co. v. Hallgren, 146 Neb. 530, 20 N.W.2d 501; Steffens v. American Standard Insurance Co. of Wis., 181 N.W.2d 174 (Iowa, 1970); 12 Couch on Insurance (2d Ed., 1964), § 45:769, p. 668.

In effect this is what the bankruptcy court did in authorizing Kenyon to proceed against Deyle on Larsen's claim against Deyle. The proceeding was similar to a proceeding in aid of execution with Kenyon, as a judgment creditor, acquiring the right to proceed on the Larsen claim.

The question as to who was the proper party plaintiff was settled by agreement of the parties before the trial commenced. The record recites that the parties agreed, before the trial started, that the court would advise the jury the case was being brought by Kenyon and Larsen as plaintiffs, but that any recovery could be based only on whatever rights Larsen had against Deyle. This settled any controversy there may have been as to who was the proper party plaintiff. The trial court followed this theory in stating the issues in instruction No. 2, and the defendant Deyle made no objection to that part of the instruction. The trial court did not err in substituting Kenyon as the third-party plaintiff, and the defendant can not now claim that the trial court erred in advising the jury that the action was brought by Kenyon and Larsen as plaintiffs.

The verdict of the jury cured any error in submitting the contract theory of recovery to the jury.

The trial court denied the defendant Deyle's motion to require the plaintiff to elect one of the two theories of recovery pleaded in the petition. Pleading alternative theories of recovery is permitted in this state and, ordinarily, an election between theories of recovery will not be required unless the theories are so inconsistent that a party cannot logically choose one without renouncing the other. Asher v. Coca Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252.

In this case both theories of recovery depended upon proof of a promise by Deyle to obtain automobile liability insurance for Larsen. The record does not disclose that any substantial prejudice to the defendant resulted from submitting both theories to the jury. We conclude there was no error in doing so.

The following occurred during the reading of a deposition to the jury by plaintiff's counsel: "THE COURT: Mr. Loftus, you may continue the reading of the deposition now. MR. LOFTUS: For the record, I would like the record to show this will only be about two or three pages I would like to read into the record. On the insistence of Mr....