Kirchner v. Gast

• Decision Date: 11 December 1959
• Docket Number: No. 34579,34579
• Citation: 100 N.W.2d 65,169 Neb. 404
• Parties: James F. KIRCHNER, Appellant-Cross-Appellee, v. Carol R. GAST, Appellee-Cross-Appellee, Metropolitan Utilities District, Intervener and Appellee-Cross-Appellant.
• Court: Nebraska Supreme Court

Page 65

100 N.W.2d 65

169 Neb. 404

James F. KIRCHNER, Appellant-Cross-Appellee, v. Carol R. GAST, Appellee-Cross-Appellee Metropolitan Utilities District, Intervener and Appellee-Cross-Appellant.

No. 34579.

Supreme Court of Nebraska.

Dec. 11, 1959.

Syllabus by the Court

1. A petition in intervention under the provisions of section 25-328, R.R.S.1943, to be filed as a matter of right must be filed before the trial.

2. An intervener against whom a judgment has been rendered must be accorded the rights which, under like circumstances, belong to any other unsuccessful suitor.

3. Section 25-329, R.R.S.1943, is applicable where an intervenor has met the requirements of section 25-328, R.R.S.1943, and has pleaded the required interest in the matter in litigation. It requires the issues presented by such an intervention to be decided when the issues presented by the plaintiff and defendant are determined. It does not apply to a decision of the preliminary question of the sufficiency of the petition in intervention.

4. The interest in a matter in litigation which will authorize a person to intervene must be such a direct and immediate interest that the person or persons seeking to intervene will either lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.

5. Every person is entitled to access to courts of justice without interference from persons who have no interest in the matters in litigation.

6. To authorize a party to intervene the interest must be one arising from a claim to the subject matter of the action or some part thereof, or a lien upon the property or some part thereof.

7. The matter in litigation as used in section 25-328, R.R.S.1943, is the subject matter of the action, 'the thing in controversy.'

8. Section 25-842, R.R.S.1943, provides that every material allegation of new matter in an answer not controverted by a reply shall for the purpose of the action be taken as true, yet a litigant will not be permitted to try his case in the district court as though a reply traversing the allegation in his answer were on file and insist in this court that no reply was filed.

9. A party may at any and all times invoke the language of his opponent's pleading, on which a case is being tried, on a particular issue, as rendering certain facts indisputable; and in doing this he is neither required nor allowed to offer such pleading in evidence in the ordinary manner.

10. The above rule applies only to statements in the pleadings upon which the case is tried. It has no application to statements contained in pleadings which have been superseded by amended pleadings.

11. Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded.

12. A plaintiff may not recite upon oath one statement of facts in one judicial proceeding and then, to meet the exigencies of the occasion in the trial of a different suit, recite under oath an entirely different story.

13. An unexplained change in the evidence of a litigant not required by the exigencies pointed out in a previous trial is a matter of impeachment, credibility, and weight for the jury to determine.

14. Extrajudicial statements of fact made by a party relating to matters material to the issues in a controversy are available to the adverse party in a trial thereof as admissions against interest or for impeachment. Such statements are, however, not conclusive but may be explained, rebutted, or contradicted, and thereafter are to be given such weight as the trier of the facts deems them entitled.

15. If it appears that a defendant has been guilty of gross negligence and a plaintiff has been guilty of slight negligence by comparison with that of the defendant the plaintiff may recover.

16. If a defendant has been guilty of gross negligence and a plaintiff has been guilty of negligence more than slight by comparison with that of the defendant the plaintiff may not recover.

17. If a defendant has been guilty of negligence but which is less than gross and the plaintiff has been guilty of negligence in any degree the plaintiff may not recover.

18. In an action based on negligence to which the comparative negligence rule has application wherein the evidence shows beyond reasonable dispute that the plaintiff's negligence was more than slight in comparison with that of the defendant the action should be dismissed or verdict directed.

Chas. E. Kirchner, Omaha, for appellant.

Wear, Boland, Mullin & Walsh, A. Lee Bloomingdale, Omaha, for Carol R. Gast.

Harry H. Foulks, Jr., George C. Pardee, G. H. Seig, Omaha, for Metropolitan Utilities Dist.

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

SIMMONS, Chief Justice.

This is an intersection automobile damage case with this distinction: The two cars involved did not make contact. Defendant was driving south across an intersection. Plaintiff was driving east. Plaintiff's car passed around the rear of defendant's car. It then went at an angle across the intersection over a curb near the northeast corner and came in contact with a tree and a water hydrant. Plaintiff suffered personal injuries. The car was damaged. The water hydrant was damaged.

The car plaintiff was driving belonged to plaintiff's father. Plaintiff, alleging negligence of the defendant, sued in one cause of action for damages to his person, and in a second cause sued as assignee for damages to the car. Issues were made as between plaintiff and defendant.

The Metropolitan Utilities District, hereinafter called the District, intervened, alleging negligence of both the plaintiff and defendant and sought a recovery of the damages to its water hydrant. Issues were made as between plaintiff, defendant, and the District. The trial court on its own motion and on an oral motion of plaintiff gave the District leave to docket the pleadings as a separate proceeding and dismissed the petition in intervention.

The action was then tried resulting in a directed verdict for defendant. Plaintiff appeals alleging error in the direction of a verdict against him. The District, as appellee assigns error in the order of dosmissal of its petition in intervention.

We affirm the judgment of the trial court.

Chronologically the issues here involved developed in the following manner:

The accident occurred on February 12, 1957. Plaintiff filed his petition on June 18, 1957. The defendant filed his answer on July 3, 1957. The District filed its petition in intervention on October 16, 1957. On November 12, 1957, the defendant answered the petition in intervention, joining issues and praying that the petition in intervention be dismissed.

On December 2, 1957, plaintiff filed his answer to the petition in intervention in which he answered generally and denied that the District had an interest in the matter entitling it to intervene. On December 12, 1957, the District filed its reply to both answers.

On December 5, 1958, the trial court, upon its own motion, and upon motion made by plaintiff, took up the matter in the plaintiff's answer to the petition in intervention. The court held that the District was not authorized to intervene in the action. The court granted the District leave to redocket the pleadings pertinent to the intervention as a separate actior and if not done within 10 days the petition in intervention 'will be dismissed without prejudice.' The cause came on for trial December 8, 1958. On that day the District presented a motion to be allowed to participate in the trial. The motion was denied.

On December 10, 1958, the trial court sustained defendant's motion for a directed verdict.

On December 11, 1958, the District moved for judgment on the pleadings and the evidence.

On December 15, 1958, the District moved to vacate the dismissal order of its petition which it entitled a 'Motion for New Trial.' On the same day the court entered an order denying the District's motion for judgment.

On December 31, 1958, the court denied the motion of December 15, 1958.

In the meantime plaintiff had on December 11, 1958, filed a motion for a new trial which was overruled on December 15, 1958. On December 24, 1958, plaintiff gave notice of intent to appeal. The transcript was filed here on January 16, 1959.

As of July 20, 1959, the clerk of the district court certified that the District had not caused the pleadings pertinent to its intervention to be redocketed.

The District filed here its brief on cross-appeal. It presents its right to intervene under the provisions of section 25-328, R.R.S.1943.

Defendant here challenges the District's right to cross-appeal under the provisions of sections 25-1912 and 25-1913, R.R.S.1943. Defendant contends that the order of dismissal of the petition of intervention, if the cause was not redocketed, was a final order and this court could only get jurisdiction of that question by a separate notice of appeal; and that no appeal proceedings having been had from the order the question was finally determined.

The question is: Was the District a party to the action under the provisions of sections 25-1912 and 25-1913, R.R.S.1943, and our rule 1 b, so as to give it the right of cross-appeal provided by our rule 1 d? The District intervened under the provisions of section 25-328, R.R.1943.

Section 25-328, R.R.S.1943, provides: 'Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in...