Lager v. Schumacher, s. A-91-1263
| Decision Date | 07 September 1993 |
| Docket Number | A-91-1264,Nos. A-91-1263,s. A-91-1263 |
| Citation | 510 N.W.2d 558,1 Neb.App. 1159 |
| Parties | August J. LAGER, Appellee, v. Joel L. SCHUMACHER and Donald Schumacher, Appellants. Betty M. LAGER, Appellee, v. Joel L. SCHUMACHER and Donald Schumacher, Appellants. |
| Court | Nebraska Court of Appeals |
James W. Ellison of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellants.
Robert M. Brenner of Robert M. Brenner Law Office, Gering, for appellees.
These two cases, which were consolidated in this court for oral argument, involve negligence actions that arose out of the same automobile accident and were consolidated for trial. Appellees, August J. Lager and his wife, Betty M. Lager, brought separate actions against appellants, Joel L. Schumacher and Donald Schumacher, after a van operated by Joel collided with the Lagers' car. The district court for Scotts Bluff County awarded summary judgment for the Lagers on the issue of liability. After a trial on the issue of damages, a jury awarded August Lager $71,000 and Betty Lager $145,000. For the reasons set forth below, we affirm.
On April 3, 1990, August and Betty Lager were traveling west on U.S. Highway 26 near Minatare, Nebraska, when an eastbound van driven by Joel Schumacher turned into and collided with the Lagers' vehicle. As a result of the accident, both August and Betty Lager were hospitalized for 6 days.
Betty Lager suffered head, face, neck, chest, and leg injuries. The accident left Betty Lager with facial nerve damage that causes the tissues surrounding her left eye to sag, which in turn obstructs her field of vision. Medical testimony at trial revealed that Betty Lager may require surgery to repair the nerve damage. August Lager sustained head injuries and a severe impact to his chest, which impact exacerbated an existing cardiovascular condition. Expert testimony revealed that August Lager will have lifelong health problems as a result of the accident. The Lagers also testified that the accident has had a devastating impact on their relationships with each other and with their family.
The Lagers filed separate negligence actions against appellants. Between the filing of the actions and trial, Betty Lager assigned her claim against appellants for past medical expenses to August Lager. The trial court granted summary judgment for the Lagers on the issue of liability and thereafter sustained the Lagers' motion to consolidate their respective actions for trial on the issue of damages.
Prior to trial, the Lagers filed a motion to amend their petitions to reflect the assignment of Betty's past medical expenses to August. Although a date was scheduled to hear this motion prior to trial, for purposes that are unclear from the record, the motion was not heard until after trial, whereupon it was granted. This peculiar sequence is not assigned as error by appellants.
The jury returned a verdict for Betty Lager in the amount of $145,000 and returned a verdict for August Lager in the amount of $71,000.
Appellants have made identical assignments of error in each of the cases. Appellants allege that the district court erred in (1) failing to dismiss Betty Lager's action as res judicata after she assigned her claim for past medical expenses to August Lager, (2) holding that August Lager was the real party in interest regarding Betty Lager's claim for past medical expenses, (3) consolidating the Lagers' actions for trial, and (4) not finding the jury verdicts excessive.
In their first assignment of error, appellants claim that by assigning her claim for past medical expenses to August Lager, Betty Lager split her claim, and that her entire action is barred by the doctrine of res judicata. Appellants reason that since the jury read August Lager's verdict first, Betty Lager's entire action was thereafter barred by the doctrine of res judicata.
West Town Homeowners Assn. v. Schneider, 215 Neb. 905, 907, 341 N.W.2d 588, 590 (1983). The doctrine of res judicata is based upon the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive on the parties in any later litigation involving the same cause of action. Farmers State Bank v. Germer, 231 Neb. 572, 437 N.W.2d 463 (1989). The underlying rationale for the doctrine of res judicata is grounded on public policy and the necessity to end litigation and the hardship imposed upon a person by being vexed twice for the same cause of action. Id.
Generally, where a plaintiff assigns part of her claim to another person, recovery of the assigned portion will extinguish the cause of action and bar a subsequent action for the balance of her claim. 1 Am.Jur.2d Actions § 133 (1962). The reason for this result is the same as for the doctrine of res judicata, because if an assignor and an assignee are allowed to bring separate actions upon their respective portions of a claim, the defendant will be forced to litigate the claim twice. However, several jurisdictions have recognized that the application of the rule against claim splitting is subject to some flexibility, and where its application would result in manifest injustice, it is to be qualified or rejected. See, Westwood Chemical Co., Inc. v. Kulick, 656 F.2d 1224 (6th Cir.1981); 1A C.J.S. Actions § 177 (1985).
In this case, the purpose of the rule against claim splitting has been complied with. Appellants were not required to litigate the same claim on two separate occasions because appellees' respective actions were consolidated into a single proceeding.
Appellants' contention that Betty Lager's action is barred because the jury announced her verdict after August Lager's verdict is a misstatement of the law, for a judgment is not entered upon the jury's announcement of verdict. Rather, "[e]ntry of a judgment is the act of the clerk of the court in spreading the proceedings had and the relief granted or denied on the journal of the court." Neb.Rev.Stat. § 25-1301 (Reissue 1989). Judgment is not rendered until the pronouncement thereof is noted on the trial docket. Fritch v. Fritch, 191 Neb. 29, 213 N.W.2d 445 (1973). Although appellants' argument in this regard was flawed, we do not determine this case based on the time that judgment was entered for either August or Betty Lager.
Appellants also contend that the assignment of Betty Lager's past medical expenses claim served to inflate the amount of August Lager's verdict. Appellants reason that because the jury was instructed to consider Betty Lager's past medical expenses in with August Lager's damages, August's claim "appeared to be much larger than it actually was." Brief for appellants at 20. This argument fails because it begs the question. August Lager's claim was in fact larger than it would have been absent the assignment because part of his claim consisted of Betty Lager's past medical expenses. Appellants do not contend that the jury awarded damages for Betty Lager's past medical expenses to both August Lager and Betty. This result was adequately guarded against by the jury instruction regarding damages. The instruction directed the jury to consider Betty Lager's past medical expenses as part of August Lager's damages. The jury was also instructed on the damages that it could consider with regard to Betty Lager, and the instruction did not include her past medical expenses. Appellants did not object to the instruction and have not otherwise shown that the jury failed to follow the instruction.
Appellants cite authority from other jurisdictions holding that partial assignment of a claim bars a subsequent action where an action on a portion of the claim has already been adjudicated. However, every case cited by appellants involves two actions tried separately; hence, the defendants in those cases were being vexed twice for the same cause of action. This case is clearly distinguishable because the causes of action were consolidated for trial.
To summarize, we find that in this case the doctrine of res judicata and the rule against claim splitting were not violated by the assignment of Betty Lager's past medical expenses to August Lager because both of the claims were decided in a single proceeding and because appellants were not forced to litigate the same claim twice. Any potential prejudice to appellants arising from the assignment was adequately removed by the jury instruction regarding appellees' damages.
In their second assignment of error, appellants claim that the district court erred in holding that August Lager was the real party in interest regarding Betty Lager's claim for past medical expenses. However, appellants did not raise this issue at trial. The Nebraska Supreme Court has often recognized that an issue not presented to or passed on by the trial court is not appropriate for consideration on appeal. Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991); Hensman v. Parsons, 235 Neb. 872, 458 N.W.2d 199 (1990). Because the real party in interest issue was not presented to or passed on by the trial court, it is not appropriate for our consideration.
In their third assignment of error, appellants allege that the district court erred in consolidating appellees' cases for trial. Consolidation of cases for trial may be ordered to expedite the litigation and eliminate the multiplicity of hearings and trials, and it...
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