Marcus v. Everett

• Citation: 195 Neb. 518,239 N.W.2d 487
• Decision Date: 04 March 1976
• Docket Number: No. 40072,40072
• Parties: Carroll A. MARCUS, Appellant, v. James C. EVERETT et al., Appellees.
• Court: Supreme Court of Nebraska

Page 487

239 N.W.2d 487

195 Neb. 518

Carroll A. MARCUS, Appellant, v. James C. EVERETT et al., Appellees.

No. 40072.

Supreme Court of Nebraska.

March 4, 1976.

Syllabus by the Court

1. It is not required that one suing the 'head of a family' as an individual under the family purpose doctrine for personal injuries received in an automobile accident must first file his claim in the estate of the member of the family driving the vehicle who was killed in the accident; and neither section 24--517, R.S.Supp., 1974, nor Mueller v. Schacklett, 156 Neb. 881, 58 N.W.2d 344 (1953), is applicable to that situation.

2. The family purpose doctrine may be applied in an action by an injured third party to impose liability upon a husband who is head of the family for negligence of the wife in driving an automobile titled in both of their names as coowners, which automobile was purchased with funds contributed by both husband and wife, and both of whom have the right to use the automobile.

Casey & Elworth, Plattsmouth, for appellant.

Ronald J. Palagi, of Shrout, Caporale, Krieger, Christian & Nestle, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

There are two questions involved in this appeal, first, whether the District Court erred in granting a motion for summary judgment filed by appellee, James C. Everett, defendant below, and in dismissing said action on the ground that the court did not have jurisdiction of the action brought by appellant Carroll A. Marcus to recover damages for personal injuries; and, second, whether the family purpose doctrine is applicable under the facts of the case. We reverse and remand.

On May 11, 1973, appellant, Caroll A. Marcus, sustained personal injuries when the truck which he was driving was involved in a collision in Douglas County, Nebraska, with an automobile driven by Clarice A. Everett, wife of the appellee, James C. Everett. Clarice was killed in the accident. On or about May 22, 1973, James C. Everett filed a petition for letters of administration for the estate of Clarice A. Everett in the county court of Howard County, Nebraska, and was named administrator of his wife's estate, which was closed on September 19, 1974. It is undisputed that appellant Marcus did not file a claim in that estate for his personal injuries allegedly incurred in the accident in Douglas County. However, on July 30, 1973, appellant Marcus did file suit in the District Court for Douglas County, Nebraska, against James C. Everett to recover damages for such injuries. In his petition, he alleged, among other things: 'That at all times herein the defendant, James C. Everett, was the owner of a 1967 Ford 4 door station wagon bearing 1973 Nebraska license #49--D734, serial number 7P72H167062 and that said car was maintained by the defendant for his use and his family's use, particularly his wife, Clarice A. Everett, who at the time of the hereinafter alleged accident was the operator of said vehicle.' Without in any way considering whether the above allegations pleaded facts necessary for the application of the family purpose doctrine, it is clear that appellant's theory of recovery was premised upon the applicability of that doctrine in this case.

In his answer, appellee denied all allegations of negligence, and specifically denied that the vehicle operated by Clarice A. Everett came within the 'family use' doctrine. Thereafter, appellee, James C. Everett, filed a motion for summary judgment alleging as grounds therefore: '* * * that the pleadings, together with the Defendant's request for Admissions and Plaintiff's response, demonstrate that this Court has no jurisdiction of the case, nor has Plaintiff alleged a cause of action against the Defendant.' Following a hearing on the motion for summary judgment, the District Court for Douglas County sustained appellee's motion for summary judgment and dismissed appellant's action, finding specifically: 'I. That Clarice A. Everett, Deceased, was the wife of Defendant James C. Everett. II. That the Estate of Clarice A. Everett was probated in the Howard County Court during the period May 22, 1973 through September 19, 1974, and that no claim was filed by the Plaintiff in said Estate. III. That James C. Everett, Administrator of the Estate of Clarice A. Everett, is not named as a party defendant nor is said Estate in any other way made a party defendant in this action. IV. That this Court is without jurisdiction in this suit.'

Nowhere in its judgment did the court refer to or discuss the applicability of the family purpose doctrine to the facts before it; but it is clear that it based its decision solely and exclusively upon the conclusion that the court had no jurisdiction because of failure of the appellant to first file his claim in the estate of Clarice A. Everett while it was being probated in Howard County, Nebraska.

In support of the action taken by the District Judge, appellee cites section 24--517, R.S.Supp., 1974, and Mueller v. Schacklett, 156 Neb. 881, 58 N.W.2d 344 (1953), which he cites for the proposition that where exclusive jurisdiction of a subject matter is constitutionally conferred on county courts, and where relief sought in an action instituted in a District Court is such that the county court, under power so conferred, is authorized to grant it, the District Court does not have original jurisdiction of the case. We believe counsel for appellee misconstrues the import of the foregoing authorities. They are not applicable to this case. Appellant Marcus seeks neither to recover against the estate of the deceased, Clarice A. Everett, nor against James C. Everett, in his capacity as administrator of her estate. He seeks recovery only against James C. Everett as an individual, based upon the liability imposed upon him under the law of this state under the family purpose doctrine. That doctrine has its roots in, or at least is similar to, the liability imposed upon a principal or master for the actions of his agent or servant. It is clear that if an agent were driving the automobile of his principal in the course and scope of his employment, and was involved in a collision with a third party, as the result of which the agent died, it would not be necessary for the third party to first file a claim in the estate of the agent in order to recover for the agent's negligence in an action against the principal only. We think the District Court erred in sustaining appellee's motion for summary judgment and dismissing appellant's action on the ground that it lacked jurisdiction because of appellant's failure to first file his claim in the estate of the deceased. Appellant is entitled to a trial of the merits of his claim against appellee.

We now examine appellant's second assignment of error which is that the trial court erred in holding that the family purpose doctrine was not applicable to this case. As previously noted, the trial court did Not specifically rule on this issue in its judgment order, nor is there any reference to, or discussion of, that facet of the case therein. Nevertheless, appellant in his oral argument to this court has urged that we decide this issue to avoid the necessity of another appeal in this case on that issue in the event we remand this case for further proceedings, requiring a resolution of the issue. Under the circumstances, we believe appellant's point is well taken. We shall therefore examine the nature of the family purpose doctrine, both generally and also under the Nebraska decisions, tod etermine whether that doctrine should be considered in the trial of this case, assuming, of course, that the necessary underlying facts are established to the satisfaction of the trier of facts.

The only evidence before this court is contained in what has been entitled 'Partial Bill of Exceptions,' covering a hearing held on February 6, 1975, approximately 2 1/2 months after the judgment of dismissal entered by the court on the motion for summary judgment. The exact nature or purpose of the hearing is not clear, but apparently the testimony contained in the record on appeal was from the deposition of James C. Everett, dated October 30, 1973. He testified that he was 67 years of age and a resident of St. Paul, Nebraska, having lived there for a period of 9 years, and that he operated a liquor store. Before that he and his wife, Clarice, to whom he had been married for 34 years, operated a cafe at West Point, Nebraska. They had three children born to the marriage, all of whom were of age, and also he had an older boy by a previous marriage. His wife, Clarice, worked in the liquor store for approximately 6 to 8 hours a day. She did not have a regular salary but just took what money she wanted. While they had a joint bank account for the liquor store, they also had a separate joint account to which they both contributed. Although he testified that he was the sole owner of the liquor store, he also testified that it was currently licensed in his wife's name because he had had heart attacks 3 years previous and at that time they put the 'business' in her name so she could build up her social security. Prior to that time it had been licensed in his name. He further testified that they had two cars, a 1971 Buick Electra and a 1967 Ford, which was the car driven by his wife at the time of the accident. Both cars were registered in both their names as coowners, and the money for the purchase of the cars came from their joint bank account. He testified that both cars were family automobiles and were used by both him and his wife interchangeably. The money for gas and oil, insurance, taxes, and licenses came out of their joint account. On the morning of the accident, Mrs. Everett had driven to Omaha to visit their daughters, which was a regular occurrence. Mr. Everett had no objection to the trip. He had no personal knowledge as to how the...