Leeper v. Herz

• Decision Date: 02 October 1947
• Docket Number: 3489.
• Citation: 184 P.2d 1006,64 Nev. 497
• Parties: LEEPER v. HERZ et al.
• Court: Nevada Supreme Court

184 P.2d 1006

64 Nev. 497

LEEPER v. HERZ et al.

No. 3489.

Supreme Court of Nevada

October 2, 1947

Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.

Action by Ruth Leeper against Thomas S. Herz and Rudolph Herz, to recover for the death of plaintiff's mother as result of the alleged negligent operation of an automobile by Thomas S Herz while in the employ of Rudolph Herz. From a judgment for the plaintiff, the defendants appeal.

Judgment affirmed.

H. R Cooke, of Reno, for appellants.

Harlan L. Heward, of Reno, for respondent.

BADT Justice.

This is an appeal from a judgment of the Second Judicial District Court of the State of Nevada, in and for Washoe County, upon a verdict rendered by the jury in the sum of $5,000 for the death of respondent's mother, Agnes Leeper, caused by the negligence of Thomas Herz, one of the appellants, a minor, and the son of Rudolph Herz, the other appellant. The accident occurred in the driving of a car by Thomas while in the employ of Rudolph. Rudolph, pursuant to the uniform Motor Vehicle Operators' and Chauffers' License Act (Nev.Stats.1941, c. 190, p. 529), had also executed his assumption of liability caused by the negligence of his minor son Thomas in operating said vehicle. The amended complaint, among other things, alleged 'that plaintiff is the daughter of and the sole heir of Agnes Leeper, who died July 16, 1946.' The case is before us on appeal from the judgment alone, and the record discloses the amended complaint, the demurrer thereto, the order overruling demurrer, the answer, the reply, the verdict, and the judgment on the verdict. The answer denies negligence and pleads the further defense of contributory negligence. There is no transcript and no evidence or record of other proceedings in the trial court before us.

Only one point is urged on this appeal, namely, that the complaint does not state facts sufficient to constitute a cause of action against the defendants. Appellants insist that if this is so, 'the entire proceeding in the trial court was without jurisdiction' and that 'the trial court in effect had nothing before it'; that by reason of its error in overruling the general demurrer to the complaint the judgment must be reversed.

Appellants assert that the action is obviously brought under authority of § 8554, N.C.L., as amended, Stats.1939, page 17, reading in part as follows: 'When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death * * *.'

It is further pointed out that this was an action unknown to the common law and that, being purely statutory, it is necessary to allege sufficient facts to bring plaintiff within the provisions of the particular statute under the authority whereof the action may be maintained; that the amended complaint was fatally defective in failing to allege that the decedent was not a minor; that, in like manner, if an action were brought by the father and mother jointly under N.C.L. § 8553, it would be incumbent to a statement of a cause of action to allege that the deceased was a minor. Appellants further insist that the point was properly raised by a general demurrer to the complaint, that under the provisions of § 8601, N.C.L., and the repeated construction thereof by this court, such objection may be made at any time and that there is no course open to this court other than to reverse the judgment. In support of their contention that the amended complaint was fatally defective in not alleging that the decedent was not a minor, appellants rely upon the case of Tann v. Western Pac. Ry. Co., 39 Cal.App. 377, 178 P. 971, 972. Respondent contends that the case is not in point and that it is not good law. It is clear, however, that the case is precisely in point, and we are of opinion that it correctly and clearly states the law. It was there held, under an identical statute, that the plaintiff's failure to allege that the decedent was not a minor, left it fatally defective. 'Undoubtedly, the complaint does fail to state a cause of action if it fails to allege that deceased was an adult and left an heir, or heirs, an allegation absolutely essential in an action of this character.' Id. Virtually the same position was taken by this court in Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451, and by the United States District Court for this district in Perry, Administrator v. Tonopah Mining Co. of Nevada, D. C., 13 F.2d 865. In the Tann case, however, peculiarly enough, the trial court had erroneously sustained a demurrer, without leave to amend, upon two other grounds, and the California District Court of Appeal reversed the judgment and remanded the cause so that the complaint might be amended and further proceedings had. No trial of the case had been had in the trial court.

While we are entirely in accord with the holding of the California court to the effect that the complaint did not state a cause of action, the instant case finds itself in a very different position from that of Tann v. Western Pac. Ry. Co., supra. Here, as there, we are confronted with the rule that there was no waiver of the point that the complaint did not state facts sufficient to constitute a cause of action, and here, as there, the particular point involved was not urged in the court below. From that point however, the status of the instant case and the status of the Tann case diverge decidedly. There had been no trial of the issues in the Tann case, and the court quite properly remanded the case for trial on the amended complaint. The present case, however, presents the following situation. Although the general demurrer was served and filed it was submitted without argument, and quite naturally overruled. The point involved was never urged to the trial court nor ever called to its attention. From the entire absence of any record other than the judgment roll mentioned, we are confronted with a number of assumptions: that the point was not urged in objections to the evidence, that it was not the basis of a motion for new trial, that it was not urged as grounds of a nonsuit, that it was not presented in the form of instructions to the jury nor in the form of a demurrer to the evidence, and that, more important still, the actual fact that decedent was not a minor was established by due and competent proof. Indeed, appellants insist that the proof of such fact was essential to plaintiff's case. We must, therefore, assume that there was ample evidence to support the findings of the jury, including the issue of the majority of the decedent. Harper v. Lichtenberger, 59 Nev. 495, 92 P.2d 719, 98 P.2d 1069, 99 P.2d 474.

If the point had been called to the attention of the district court, it would undoubtedly have sustained the demurrer with leave to plaintiff to amend by inserting the words 'not a minor.' If the point had been raised on objections to evidence the trial court would undoubtedly, in the exercise of a sound discretion, have permitted the amendment then and there, in the absence of circumstances...