Kunkel v. Cohagen

• Decision Date: 18 November 1949
• Docket Number: 32642.
• Citation: 39 N.W.2d 609,151 Neb. 774
• Parties: KUNKEL v. COHAGEN.
• Court: Nebraska Supreme Court

39 N.W.2d 609

151 Neb. 774

KUNKEL v. COHAGEN.

No. 32642.

Supreme Court of Nebraska

November 18, 1949

Syllabus by the Court

1. Alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect had been, or was afterwards, allowed to be given by the witness.

2. An assignment of error directed to the rejection of offered testimony may be disregarded on appeal, if the places in the record where the offer of proof and the challenged ruling may be found are not pointed out in appellant's brief.

3. The reasonable value of the use of machinery for commercial purposes is the reasonable net rental value upon the market at the place in question of the machine involved or machinery of like capacity and performance, the lessee bearing all such expenses as he would have to bear in the operation of his own machine.

4. Where the evidence shows that a similar machine could not be rented in the market, or that a rental value cannot be established, then the owner of the machine may rely on proof of loss of proofits to establish the reasonable value of the loss of use.

5. This court will not disturb the findings of a jury unless on an examination of the record it may be said that such findings are not supported by any evidence or are clearly wrong.

S S. Diedrichs, North Platte, for appellant.

Crosby & Crosby, North Platte, Baskins & Baskins, North Platte, for appellee.

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

SIMMONS Chief Justice.

In this action plaintiff sought the recovery of damages resulting from an accident to a combine while being transported by defendant. Issues were made and trial had. Plaintiff recovered judgment. Plaintiff appeals for reasons hereinafter stated. We affirm the judgment of the trial court.

Plaintiff purchased the combine in 1946, and at that time became its third owner. It had been extensively used prior to its purchase. Plaintiff used it for harvesting for hire the season of 1946 and the beginning of the 1947 season. He engaged the defendant to transport the machine from Kansas to Lincoln County for a charge of $60, which was paid. While being so transported on either July 30 or July 31, 1947, an accident occurred causing substantial damage to the combine. After the accident the machine was repaired and on August 17, plaintiff started with it to North Dakota where it was sold on August 20, 1947.

Plaintiff sued for damages, alleging that the fair market value of the combine prior to the accident was $5,000, and that as a result of the damages it was absolutely worthless, and sought a recovery of $5,000. Plaintiff further alleged that at the time of the accident he had a contract to cut wheat for a period of 26 days and that the net profits from the operation would have been $200 per day, and sued for loss of earnings in the sum of $5,200, or a total of $10,200. The defendant moved to strike the allegations of the petition with reference to loss of earnings on the ground that they did not plead any proper measure of damages. The trial court overruled the motion. So far as material here, the answer was a general denial.

The trial court instructed the jury that if it found for the plaintiff it should render judgment for the difference between the reasonable market value of the combine immediately before and immediately after the accident. The court told the jury it could consider among other things the time and expense it would reasonably take to repair the combine; that evidence had been introduced relative to the price per acre being paid for the harvest of grain by a combine at the time of such injury, and as to profits that reasonably could have been made by the use of such combine for the harvest of grain; and that the jury could not compute the amount of the plaintiff's recovery from such profits, either partially or wholly, but it could take into consideration what profits the evidence showed could reasonably have been made from the use of such combine in making a determination of the reasonable market value of said combine, both before and after its injury.

The jury returned a verdict for $1,218, which included, under the court's instructions, interest at six percent for one year and four months.

Plaintiff's first contention here is that the trial court erred in refusing to allow the admission of evidence of anticipated profits.

Rules 8 a 2(6) and (7) of this court require a statement of facts with appropriate reference to the record. Plaintiff makes a general assignment of error in refusing the admission of evidence without specific reference to the record. By way of argument plaintiff makes the same general charge referring by citation to only one specific refusal to admit evidence on an offer of proof. As to that the record shows that almost at the close of his case-in-chief plaintiff, as his own witness, offered to prove that at the time he engaged defendant to transport the combine he had contracted with one Thompson for cutting one-half of 500 acres of grain at a price of $8 per acre; that he was able to cut some 25 acres of grain per day; that his expenses would be about $10 a day; and that he was prevented from realizing profits in the amount of $1,900 to $2,000 on the contract by reason of the damages to the machine. The trial court denied the admission of the evidence offered. The record shows that prior thereto, over general objections and objections that it was not the proper measure of damages, plaintiff had testified to all the facts contained in the offer, excluding the computation of profits and that Thompson, over general objections as to competency, had testified in corroboration. The record further shows that the offer was made because plaintiff seemed in doubt as to the prior admission of the evidence. Under these circumstances there was no prejudicial error in the trial court's ruling. The rule is: 'Alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect, had been, or was afterwards, allowed to be given by the witness.' Gugelman v. Kansas City Life Ins. Co., 137 Neb. 411, 289 N.W. 842.

The rule is 'An assignment of error directed to the rejection of offered testimony may be disregarded on appeal, if the places in the record were the offer of proof and the challenged ruling may be found are not pointed out in appellant's brief.' Whitney v. Broeder, 94 Neb. 305, 143 N.W. 228. We...