Mackechnie v. Lyders
| Decision Date | 29 April 1938 |
| Docket Number | 30250 |
| Citation | 279 N.W. 328,134 Neb. 682 |
| Parties | MARGARET MACKECHNIE, APPELLEE, v. OSCAR LYDERS ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK L. SPEAR JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Sections 60-310 and 60-325, Comp.St.1929, set forth the manner in which title to automobiles can be transferred between living persons, and substantial compliance with said sections of the statute is required. When facts are in controversy as to ownership of an automobile, and where such controverted facts are submitted to the jury by the trial court, persons who have not substantially complied with the provisions of the statute relative to such transfer are in no position to complain upon the submission of this issue to the jury.
2. " To sustain a recovery for injuries caused by being run down by an automobile owned by the defendant, the plaintiff must show by a preponderance of the evidence that the person in charge of the machine was the defendant's servant, and was, at the time of the accident, engaged in the master's business or pleasure with the master's knowledge and direction." Neff v. Brandeis, 91 Neb. 11, 135 N.W. 232, 39 L.R.A.,N.S., 933.
Evidence examined in the instant case, and held to be a question for the jury as to whether or not one of the defendants was in the employ of the other defendant at the time of the accident in question.
3. " The place which a passenger occupies in an automobile is important in determining whether he exercised reasonable care and prudence to detect and warn against danger, for one on the front seat with the driver may have a far better opportunity of discovering any danger ahead in the path of the car than one in the back seat." 5 Am.Jur. 771, § 478.
Upon examination of evidence in the instant case, held such evidence is insufficient to show contributory negligence on the part of the plaintiff.
4. " It is proper practice for court to refuse to submit to jury defense not supported by evidence." Sterns v. Hellerich, 130 Neb. 251, 264 N.W. 677.
5. " A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence." Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N.W. 163.
6. Negligence of defendant driver of bus as proximate cause of injuries sustained by plaintiff held question for jury.
7. Where the court gave an instruction, tendered by the defendants, to the effect that, if the jury find from a preponderance of the evidence that the proximate cause of the accident complained of by the plaintiff was the presence and action of a car driven by a third and unknown person, then, upon so finding, the verdict of the jury must be for the defendants, and, in addition thereto, the court gave instructions on its own motion, similar in form and incorporating therein the same subject-matter as set forth in the requested instruction given, held such instructions in this behalf are sufficient under the circumstances and are not prejudicially erroneous.
8. " It becomes the duty of the trial court to submit to the jury the necessary issues of fact presented by the pleadings and the evidence, whether requested or not, and a failure to do so constitutes error." Wagner v. Watson Brothers Transfer Co., 128 Neb. 535, 259 N.W. 373.
However, where all the facts and circumstances are before the jury relative to ownership of an automobile and employment of the driver, it is not necessary for the trial judge to select a statement of facts on the issues presented and incorporate such facts in the instructions and thereby qualify the instructions, and no error results from the court's failure to so do.
9. Where instructions given by the court, considered as a whole, properly state the applicable law, they are sufficient. Holtz v. Plumer, 133 Neb. 878, 277 N.W. 589.
Appeal from District Court, Dodge County; Spear, Judge.
Action by Margaret Mackechnie against Oscar Lyders and John Lyman for injuries sustained when a bus allegedly owned by Oscar Lyders and driven by John Lyman left the road and ran into a field. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed.
Baylor, Tou Velle & Healey and Courtright, Sidner, Lee & Gunderson, for appellants.
Stiner, Boslaugh & Stiner, Robins & Yost and Butler & James, contra.
Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.
This is an appeal from the district court for Dodge county in a law action to recover damages for personal injuries on account of defendants' negligence. The jury returned a verdict for the plaintiff, and from such verdict defendants have appealed.
Plaintiff's petition alleges ownership of the bus in defendant Lyders, the occurrence of the accident, the driving of the bus by defendant Lyman as an employee of defendant Lyders, and alleges certain acts of negligence on the part of Lyman, the injuries sustained by plaintiff, and prays for damages. The answer of defendant Lyders admits the occurrence of the accident; that the plaintiff sustained injuries; alleges certain affirmative acts of contributory negligence on the part of the plaintiff, and denies ownership of the bus in Lyders. The answer of defendant Lyman is to the same effect. Both answers deny negligence on the part of defendants. The reply is, in substance, a general denial of defendants' answers.
The evidence discloses that Professor Lyders was the head of the music department of Midland College, Fremont, Nebraska; that defendant Lyman was a student in such college, and the plaintiff was an employee of the college, being an assistant to Professor Lyders. In April, 1936, a trip was planned to transport the acappella choir, consisting of 65 members, by two automobiles and two busses through certain parts of the state of Texas on a concert tour. On April 19, 1936, the choir had given a concert at Fort Worth, Texas, and was about to give another concert at Denton. Texas, approximately 35 miles distant, at 8 o'clock on the same evening. To be present in Denton for the concert required some haste on the part of the members of the choir. The 1928 Studebaker bus, in which the plaintiff was riding and which defendant Lyman was driving at the time of the accident, left Fort Worth about 5:30 p. m. When midway between Fort Worth and Denton, and when the driver of the bus was about to negotiate a curve on an oiled road, the right wheels of the bus followed the right shoulder of the road across and over a ditch and into a field where the bus circled and was stopped. Plaintiff fell from the rear door of the bus and was injured. The facts will be more specifically covered in this opinion in relation to certain assignments of error, to which such facts as may be necessary will be applied.
The first four assignments of error are as to the insufficiency of the evidence to support the verdict; that the verdict is contrary to law, and that the separate motions of defendants for a directed verdict should have been sustained by the trial court.
The ownership of the bus in Lyders is questioned by defendants. The pertinent facts relating to this question follow: There had been some discussion between Lyders and Doctor Martin, the head of Midland College, relative to transportation of the choir and athletic teams of the college to and from different points, and that the hiring of transportation created too much expense on the part of the college. Lyders discovered the 1928 Studebaker bus, involved in this action, in the city of Omaha, took up the matter of purchasing it with Doctor Martin, and both agreed that it was a bargain at the price offered. Doctor Martin, however, stated, in substance, that the college did not have sufficient funds with which to buy the bus; that if Lyders would assume full responsibility for the purchase any profits made from the trips would be used to reimburse Lyders for the moneys expended. Thereafter Lyders purchased the bus, paying for it personally. He borrowed the money from the Fremont State Company, and gave a chattel mortgage on the bus to that company for the loan.
January 21, 1935, the original motor vehicle license, issued to Smith Robinson Motor Company, from whom Lyders purchased the bus was transferred on the transfer record on the back of the original certificate to Lyders, and signed by Smith Robinson Motor Company of Omaha. Plaintiff's exhibit Y (defendants' exhibit 6) is an affidavit signed by Oscar Lyders and sworn to before a notary public on April 2, 1936, wherein he states that he is the owner of the bus and petitions the treasurer of Dodge county to issue a license to "Midland College / Oscar Lyders." The transfer record shows a transfer to Oscar Lyders, and a bill of sale on a regular state of Nebraska form for the transfer of motor vehicles was issued to Oscar Lyders, sworn to before a notary public on January 21, 1935, and contained in the bill of sale were the words "has sold and transferred to Oscar Lyders." Subsequently, on January 23, in the same bill of sale appears "Midland College Choir, Oscar Lyders, Mgr.," which is also sworn to before a notary public. The county treasurer of Dodge county on January 23, 1935, issued a motor vehicle license covering the Studebaker bus to Oscar Lyders. The registration fee was paid by Oscar Lyders in the amount of $ 15. On April 16, 1935, a readjustment was made on the certificate and the sum...
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