McCready v. Al Eighmy Dodge, 40604

• Decision Date: 23 February 1977
• Docket Number: No. 40604,40604
• Citation: 250 N.W.2d 640,197 Neb. 684
• Parties: Della J. McCREADY, as Administratrix of the Estate of Donald C. McCready, Deceased, Appellant, Cross-Appellee, v. AL EIGHMY DODGE, a partnership, Appellee, Cross-Appellant.
• Court: Nebraska Supreme Court

Page 640

250 N.W.2d 640

197 Neb. 684

Della J. McCREADY, as Administratrix of the Estate of Donald C. McCready, Deceased, Appellant, Cross-Appellee, v. AL EIGHMY DODGE, a partnership, Appellee, Cross-Appellant.

No. 40604.

Supreme Court of Nebraska.

Feb. 23, 1977.

Syllabus by the Court

Noncompliance by counsel with the requirement that he object to a proposed jury instruction when it is submitted to him does not bar this court from opting to consider plain errors in a record indicative of a probable miscarriage of justice.

James E. Schneider, James R. Nisley, North Platte, for appellant.

Murphy, Pederson & Piccolo, LeRoy Anderson, North Platte, for appellee.

Heard before SPENCER, McCOWN and NEWTON, JJ., and CANIGLIA and COADY, District Judges.

CANIGLIA, District Judge.

This is an action for the wrongful death of Donald C. McCready. The plaintiff, Della J. McCready, his widow, brings this action as administratrix of his estate, charging the defendant, Al Eighmy Dodge, a partnership, with negligence in the death of her decedent husband in a truck-tree collision on November 10, 1966.

The plaintiff alleges that the defendant negligently repaired the brakes of the truck operated by her decedent, and, after said repair, the defendant should have discovered or known that the truck was using unreasonably large amounts of brake fluid, failed to warn said decedent that the inordinate loss of brake fluid was dangerous, and that the proximate cause of the accident and resulting damage was the negligence of defendant. Defendant generally denied liability and alleged that the plaintiff's decedent was guilty of contributory negligence, and assumed the risk.

A trial to a six-man jury resulted in a verdict for the plaintiff in the sum of $35,992, and judgment was entered on the verdict by the court. Thereafter, the defendant-appellee, filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The court overruled the motion for judgment notwithstanding the verdict and sustained the defendant's motion for a new trial on the 'basis that instruction No. 2 given by the court at the trial of this action is very erroneous.'

The plaintiff has appealed from the granting of the defendant's motion for a new trial, assigning as error, among other things, that the court erred in finding that instruction No. 2 was erroneous, in failing to rule that the defendant had waived any error in said instruction No. 2 by reason of its approval of said instruction, and in failing to object to said instruction at the conference on instructions held by the court prior to the time the jury was instructed.

The defendant has cross-appealed, assigning as error the trial court's failure to sustain the defendant's motion to dismiss the action or for a directed verdict in favor of the defendant.

We will discuss the merits of plaintiff's appeal first.

The plaintiff correctly asserts that when a party to a trial has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts at issue, he has the right to keep the benefit of that verdict unless there is prejudicial error in the proceedins by which it was secured. Roush v. Nebraska P.P. Dist., 189 Neb. 785, 205 N.W.2d 519.

The error, if any, in this proceeding is in the giving of instruction No. 2, which was given as follows: 'If the plaintiff has failed to establish any one or more of the foregoing numbered propositions by a preponderance of the evidence, your verdict will be for the defendant.

'On the other hand, if the plaintiff has established by a preponderance of the evidence all of the above numbered propositions, then you must consider the defendant's defense.

'In defense to the plaintiff's claim, the defendant alleges that the plaintiff's decedent was negligent himself in one or more of the particulars above enumerated by the defendant, and the plaintiff's decedent assumed the risk of his own injury.

'In connection with the assertion of the plaintiff's decedent's negligence, the burden is on the defendant to prove by a preponderance of the evidence one or more of its claims of negligence on the part of the plaintiff's decedent.

'In connection with defendant's claim of assumption of risk by plaintiff's decedent, see Instruction No. 4.

'If the defendant has failed to establish Both (italics added) propositions by the preponderance of the evidence, and the plaintiff has established by a preponderance of the evidence that the defendant was negligent in one or more of the particulars claimed against him by the plaintiff, and that such negligence was . . ..'

The trial court, in sustaining the defendant's motion for a new trial on the basis of the above instruction, referred to that part of the instruction commencing with, 'If the defendant has failed to establish Both (italics added) propositions by the preponderance of the evidence, . . ..' As if to emphasize that part of the instruction, the court penned a line through the word 'said' and wrote in longhand the word 'both.' Then the Court added the letter 's' in longhand to the word 'proposition,' thus changing the reading from 'said proposition' to 'both propositions.' By doing so, the court, in effect, told the jury that the burden was on the defendant to prove Both (italics added) defenses of contributory negligence and assumption of risk. This amounts to an improper instruction with respect to said affirmative defenses.

We agree with plaintiff's proposition of law that ordinarily the failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection thereafter. Haumont v. Alexander, 190 Neb. 637, 211 N.W.2d 119; Barta v. Betzer, 190 Neb. 752, 212 N.W.2d 352; Beveridge v. State, 183 Neb. 406, 160 N.W.2d 229; Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 8 Cir.

However, noncompliance by counsel with the requirement that he object to a proposed jury instruction when it is submitted to him does not bar the court from opting to consider plain errors in a record indicative of a probable miscarriage of justice. See Barta v. Betzer, supra; Rule 8 a 2(3), Revised Rules of the Supreme Court, 1974. Cf. 5A Moore's Federal Practice (2d Ed.) par. 51.04, pp. 2507 to 2528 (1975); 9 Wright & Miller, Federal Practice and Procedure, S. 2558, pp. 671 to 675 (1971). In Barta v. Betzer, supra, it appeared that the plain error in the instruction was present at the time of its submission by the court to counsel for review; in spite of which this court held that noncompliance by counsel with the requirement that objection be made in such a case does not bar this court from opting to consider the plain error, and even if the instruction had been changed at the time it was submitted to counsel for review, still it was within the power and the discretion of the trial court to grant a new trial on the basis of said plain error and the court is not barred from opting to consider said plain error and to grant a new trial to prevent a miscarriage of justice.

We hold, therefore, that the trial court in this case had the power and the authority to correct its errors which it properly did by sustaining the motion for a new trial, and the judgment of the trial court in sustaining the motion for a new trial is affirmed.

The defendant has cross-appealed assigning as error the trial court's refusal to dismiss the action and direct a verdict in defendant's favor or in the alternative,...