Kinsey's Estate, In re

• Decision Date: 29 December 1949
• Docket Number: No. 32607,32607
• Citation: Kinsey's Estate, In re, 40 N.W.2d 526, 152 Neb. 95 (Neb. 1949)
• Parties: In re KINSEY'S ESTATE. HEITMAN v. LUHRS.
• Court: Nebraska Supreme Court

Page 526

40 N.W.2d 526

152 Neb. 95

In re KINSEY'S ESTATE HEITMAN v.LUHRS.

No. 32607.

Supreme Court of Nebraska.

Dec. 29, 1949.

Syllabus by the Court.

1.Under section 25-1315.02, R.R.S.1943, a motion for directed verdict is an absolute prerequisite to a motion for judgment notwithstanding the verdict, and the trial court cannot, either upon its own motion or upon motion for judgment notwithstanding the verdict, set aside a verdict and enter a judgment notwithstanding the verdict, where no preliminary motion for a directed verdict has been made.

2.A party aggrieved by a verdict may move for a new trial upon the grounds that the verdict is 'not sustained by sufficient evidence, or is contrary to law' as provided in section 25-1142, R.S.1943, and the trial court has the power and authority to grant a new trial where such legal cause or reason therefor appears in the record and timely appropriate motion for new trial has been filed, notwithstanding the fact that no preliminary motion for directed verdict has been made.

3.Where different minds may reasonably draw different conclusions from the evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence and the degree thereof when one is compared with the other, such issues must be submitted to the jury for its determination.

4.Where a party has sustained the burden and expense of a trial and has succeeded in securing the verdict of a jury on the issues in such a case, he has the right to keep the benefit of that verdict and judgment thereon, unless there is prejudicial error in the proceedings by which it is secured.

5.The rules of law generally operative in tort cases have application to the issues of negligence resulting from the operation and management of airplanes, except insofar as specifically applicable statutes or authoritative rules and regulations are controlling.

6.The pilot of an airplane is bound only to use the ordinary care and diligence required of pilots of ordinary care and skill under the same conditions and circumstances.

7.An instruction will not be held to be prejudicially erroneous merely because of a harmless imperfection which cannot reasonably be said to have confused or misled the jury to the prejudice of the party complaining.

8.Where an instruction, although erroneous, is not prejudicially so and cannot by any course of logical reasoning be deemed to have resulted in disadvantage to the complaining party, it is not legal cause or reason for granting a new trial.

9.In determining whether there is error in the giving of a sentence or part of a sentence in an instruction, it must be considered in connection with the entire instruction of which it is a part and all other instructions given by the court.The true meaning of instructions is to be determined not from a separate phrase, sentence, or paragraph, but by considering all that is said on each subject or branch of the case.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellant.

Henry W. Curtis, Imperial, Charles R. Shopp, Imperial, for appellee.

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

CHAPPELL, Justice.

Two airplanes, respectively operated by Martin Heitman and Mildred E. Kinsey, collided while in flight, at an altitude of approximately 1,200 feet, and fell to the earth, carrying both pilots to their death.This action was instituted when plaintiff filed a claim in the county court against the estate of Mildred E. Kinsey, deceased, to recover damages sustained by the widow and next of kin of Martin Heitman, whose death was allegedly caused by the negligence of Mildred E. Kinsey.From disallowance of the claim by the county court, an appeal was taken to the district court.There the cause was tried to a jury.At the conclusion of all the evidence, plaintiff moved that the court direct the jury to find for plaintiff, and submit for its determination only the question of damages.The motion was overruled.Defendant did not at any time move for a directed verdict.

The cause was submitted to the jury.It awarded plaintiff a verdict for $7,000, which was received and ordered filed with the clerk of the district court.Thereafter, within time, defendant filed a motion for new trial, contending among other things that the verdict was not sustained by the evidence but contrary thereto, and contrary to law; that the trial court erred in the giving of certain instructions; and that the claim was not a proper claim since it did not accrue during the lifetime of defendant's decedent.The last contention was disposed of by the opinion in Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856, and no further discussion is required.

After a hearing, the trial court sustained defendant's motion for a new trial, set aside the verdict, and on its own motion dismissed the case at plaintiff's cost, upon the premise that the verdict returned was not sustained by sufficient evidence but contrary thereto, and contrary to law, in that the evidence adduced in plaintiff's behalf disclosed as a matter of law not only that Martin Heitman assumed the risk of injury or death, but also was guilty of contributory negligence more than slight, barring plaintiff's recovery.Plaintiff appealed, assigning substantially that the trial court erred: (1) In dismissing the case on its own motion, at plaintiff's cost, the effect of which was to enter a judgment for defendant notwithstanding the verdict in a cause wherein defendant had never made a prerequisite preliminary motion for directed verdict or filed a motion for judgment notwithstanding the verdict based upon such a preliminary motion; and (2) in vacating the verdict and sustaining defendant's motion for new trial.We conclude that such assignments should be sustained.

In disposing of the assignments, we are required to apply the same rules of procedure as in any other civil action originally instituted in the district court.Sections 25-544 and 27-1305, R.S.1943.

Solution of the first assignment depends upon the application of sections 25-1315.01 to 25-1315.03, R.R.S.1943.Section 25-1315.01, R.R.S.1943, provides: 'A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts.A motion for a directed verdict shall state the specific grounds therefor.'

Section 25-1315.02, R.R.S.1943, provides: 'Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within ten days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict.A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.'

Section 25-1315.03, R.R.S.1943, provides: 'An order entering judgment as provided in section 25-1315.02, or granting or denying a new trial, is an appealable order, and the time for taking appeal shall commence to run from the date of entry of such order.The Supreme Court on appeal from an order granting a new trial, or upon a review of an order denying a new trial in the action in which such motion was made, or on appeal from the judgment, may order and direct judgment to be entered in favor of the party who was entitled to such judgment.'

This court has heretofore discussed, construed, and applied such sections or a part of them in situations having a similarity although not identical with those here presented.See, In re Estate of Farr, 150 Neb. 67, 33 N.W.2d 454, vacated in150 Neb. 615, 35 N.W.2d 489 upon other grounds.Patrick v. Union Central Life Ins. Co., 150 Neb. 201, 33 N.W.2d 537, andKrepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533, 536.In the last-cited opinion it was said: 'The act of 1947 is a special statute complete within itself, authorizes an order for a judgment notwithstanding a verdict, makes it an appealable order, and limits the time to 30 days within which an appeal may be taken from the entry of such order.'Also, with relation to judgments notwithstanding the verdict, it was said: 'This act applies only to a case in which a motion for a directed verdict is made at the close of the evidence.'

We conclude that a motion for directed verdict is an absolute prerequisite to a motion for judgment notwithstanding the verdict, and the trial court cannot, either upon its own motion or upon motion for judgment notwithstanding the verdict, set aside a verdict and enter a judgment notwithstanding the verdict where no preliminary motion for a directed verdict was made, as required by the foregoing statutes.Other jurisdictions have so construed and applied similar rules and statutes.See, Hemstad v. Hall, 64 Minn. 136, 66 N.W. 366;Wilcox v. Schloner, 222 Minn. 45, 23 N.W.2d 19;Friedman v. Colonial Oil Co., ...