Maricle v. Spiegel

• Decision Date: 07 January 1983
• Docket Number: No. 44283,44283
• Citation: 213 Neb. 223,329 N.W.2d 80
• Parties: Vernetta MARICLE, Appellee and Appellant, v. Richard A. SPIEGEL, doing business as Spiegel Oil Company, et al., Appellants and Appellees, Mobil Oil Corporation, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 80

329 N.W.2d 80

213 Neb. 223

Vernetta MARICLE, Appellee and Appellant, v. Richard A. SPIEGEL, doing business as Spiegel Oil Company, et al., Appellants and Appellees Mobil Oil Corporation, a corporation, Appellee.

No. 44283.

Supreme Court of Nebraska.

Jan. 7, 1983.

Syllabus by the Court

1. Parties: Appeal and Error. An appellee can not cross-appeal against another appellee.

2. Pleadings. The decision to allow or deny an amendment to the pleadings lies within the discretion of the trial court.

3. Negligence. The doctrine of last clear chance applies where there is negligence of the defendant subsequent to the negligence of the plaintiff, and the defendant's negligence is the proximate cause of the injury.

4. Negligence. Last clear chance is applicable only to excuse the contributory negligence of a plaintiff.

5. Trial: Evidence: Appeal and Error. Generally, a proper objection to the receipt of evidence is required to preserve for review any error in the overruling of a motion in limine.

6. Trial: Evidence: Appeal and Error. A defendant can not predicate error on the denial of a motion in limine when his objection to the evidence was sustained.

7. Motor Vehicles: Evidence. The admissibility of the speed of a vehicle shortly before a collision rests largely in the discretion of the trial court.

8. Evidence: Appeal and Error. The admission or rejection of photographs in evidence is largely within the discretion of the trial court. In the absence of a showing of an abuse of discretion, error may not be predicated upon such a ruling.

9. Pleadings: Damages: Waiver. Failure to plead mitigation of damages waives the defense.

10. Negligence: Pleadings. Recovery can not be had for acts of negligence not alleged in the petition.

11. Evidence. Proof as to the tax consequences of a personal injury damages award is not admissible.

12. Verdicts: Appeal and Error. A verdict will not be set aside unless it is against the weight of the evidence, or appears to have been the result of passion, prejudice, mistake, or disregard of the rules of evidence or the law.

13. Verdicts: Appeal and Error. A jury verdict will not be disturbed on appeal unless it is clearly erroneous.

14. Contracts: Independent Contractor. Generally, control, or the right of control, is the chief criterion in determining whether someone acts as an independent contractor.

Jewell, Otte, Gatz & Collins, Norfolk, for appellants and appellees Spiegel, et al.

Robert P. Chaloupka of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, for appellee and appellant Maricle.

Timothy J. Pugh of Boland, Mullin & Walsh, Omaha, for appellee Mobil Oil.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, HASTINGS, and CAPORALE, JJ.

PER CURIAM.

These cases arose out of an automobile accident which occurred on August 2, 1979, in Boone County, Nebraska. Chip Maricle was severely injured when his pickup truck collided at a rural intersection with a Mobil tank truck owned by the defendant Richard A. Spiegel and driven by the defendant Rick A. Spiegel. An action was brought by Vernetta Maricle as guardian and conservator of Chip Maricle to recover damages for his personal injuries. A separate action was brought by Vernetta Maricle as the wife of Chip Maricle for loss of consortium and personal damages she suffered as a result of the injuries to her husband. The actions were consolidated for trial and have been docketed in this court as one appeal.

The jury could find that the accident occurred when Rick A. Spiegel, in the course of his employment, failed to stop the westbound truck at a stop sign before entering the intersection. The pickup driven by Maricle was southbound and had the right-of-way. There was conflicting evidence with regard to the speed of the Maricle vehicle. Both eyewitness and expert testimony was admitted on the issue. There was also conflicting evidence as to the foundation upon which the expert testimony was based, most notably the presence or absence of skid marks caused by the Maricle vehicle.

Plaintiff also sought recovery for Chip Maricle's injuries against Mobil Oil Corporation.

The case was submitted to the jury upon issues of negligence and contributory negligence. The jury returned a verdict in the amount of $1,500,000 for the personal injuries of Chip Maricle, and $200,000 to Vernetta Maricle for her damages. The jury returned a verdict in favor of Mobil Oil Corporation.

The defendants (Spiegel) appealed, and the plaintiff appeals from the judgment in favor of Mobil. Although the plaintiff has denominated her appeal as a cross-appeal, since she filed notices of appeal, the matter will be treated as an appeal. The plaintiff and Mobil are appellees and an appellee can not cross-appeal against another appellee. Buffalo County v. Richards, 212 Neb. 826, 326 N.W.2d 179 (1982); Hansen v. Hasenkamp, 192 Neb. 530, 223 N.W.2d 44 (1974).

Spiegel assigns as error the trial court's overruling of a motion to amend defendants' answer to conform to the proof, to include the defense of "last clear chance." Spiegel argues that Maricle had the last clear chance to avoid the accident. Neb.Rev.Stat. § 25-852 (Reissue 1979) permits the court, in furtherance of justice, to amend the pleadings to conform to the proof. The decision to allow or deny an amendment lies within the discretion of the trial court. Mahoney v. May, 207 Neb. 187, 297 N.W.2d 157 (1980).

Generally, last clear chance has been described as: "[T]he rule implies that one charged with negligence knew the person injured was in a place of danger and negligently failed to avoid injuring him....

....

"The doctrine ... applies where there is negligence of the defendant subsequent to the negligence of the plaintiff and the defendant's negligence is the proximate cause of the injury." Parsons v. Berry, 130 Neb. 264, 267-68, 264 N.W. 742, 744 (1936). See, Roby v. Auker, 149 Neb. 734, 32 N.W.2d 491 (1948); Loudy v. Union P.R.R. Co., 146 Neb. 676, 21 N.W.2d 431 (1946); Malcom v. Dox, 169 Neb. 539, 100 N.W.2d 538 (1960).

A more detailed definition is given in Bush v. James, 152 Neb. 189, 195, 40 N.W.2d 667, 672 (1950): "We said, in Carter v. Zdan, 151 Neb. 185, 36 N.W.2d 781: 'In order to recover under the doctrine of last clear chance there must be sufficient evidence to sustain a finding that the party invoking the doctrine was by his own negligence immediately before the accident in a position of peril from which he could not escape by the exercise of ordinary care; that the party against whom it is asserted knew or ought to have known of the other's peril; that the party against whom the doctrine is invoked had the present ability with the means at hand to avoid the accident without injury to himself or others; that the failure to avoid the accident was due to a want of ordinary care on the part of the person against whom the doctrine is invoked and that such want of ordinary care was the proximate cause of the accident; and that the negligence of the party imperiled is neither active nor a contributing factor in the accident. * * * The doctrine has no application unless the person claiming its benefit puts himself in the position of admitting that immediately before the accident he found himself in a place of peril through his own negligence from which he could not escape by the exercise of ordinary care.' "

Prosser describes "last clear chance" as the "most commonly accepted modification of the strict rule of contributory negligence." He states that the doctrine worked well in the older-day attempt to fix liability upon the "last human wrongdoer," but that it is out of line with modern concepts of proximate cause. He adds that a few courts have attempted to recognize a last clear chance in favor of the defendant, "but since this comes out at exactly the same place as the defense of contributory negligence without the doctrine at all, and is calculated only to bewilder the jury with incomprehensible instructions, most courts have rejected any such idea." W. Prosser, Law of Torts, Negligence: Defenses § 66 at 427-29 (4th ed. 1971). See, also, Annot., 32 A.L.R.2d 543 (1953).

It was not an abuse of discretion for the trial court to overrule the motion to amend the pleadings. See Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976). Last clear chance is applicable only to excuse the contributory negligence of the plaintiff. To permit defendant to raise it as a defense would permit him to place the issue of contributory negligence before the jury in two different ways and confuse the jury. See, e.g., Ballard v. Rickabaugh Orchards, Inc., 259 Or. 200, 485 P.2d 1080 (1971).

Furthermore, the doctrine of last clear chance is factually inapplicable, as the negligence of the party seeking to invoke it was active and continuing as a contributing factor up to the time of injury. See Roby v. Auker, supra.

Spiegel next argues that the trial court's overruling of his motion in limine and the admission and exclusion of certain evidence was prejudicial and deprived Spiegel of having a fair trial.

Plaintiff sought to introduce evidence concerning Maricle's safe driving habits. The defendants' objection was sustained. The defendants can not predicate error on the denial of the motion in limine when his objection to the evidence was sustained.

Spiegel made a motion to exclude evidence of the speed of the Maricle vehicle 1 mile from the site and evidence of Maricle's safe driving habits. Generally, a proper objection to the receipt of evidence is required to preserve for review any error in the overruling of a motion in limine. See, Twyford v. Weber, 220 N.W.2d 919 (Iowa 1974); Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 772 (Iowa 1980); Annot., 63 A.L.R.3d 311 (1975).

Spiegel objected on the basis of relevancy to the admission of eyewitness testimony that Maricle's speed was 35-40 m.p.h. 1 mile from the intersection. The objection was overruled. The...