McKinstry v. County of Cass, S-89-1158

• Decision Date: 11 September 1992
• Docket Number: No. S-89-1158,S-89-1158
• Citation: 241 Neb. 444,488 N.W.2d 552
• Parties: Christina L. McKINSTRY, Special Administrator of the Estate of Eugene McKinstry, Deceased, Appellee, v. COUNTY OF CASS, Nebraska, Acting as Cass County Highway Department, Appellant, and State of Nebraska et al., Appellees.
• Court: Nebraska Supreme Court

Page 552

488 N.W.2d 552

241 Neb. 444

Christina L. McKINSTRY, Special Administrator of the Estate of Eugene McKinstry, Deceased, Appellee, v. COUNTY OF CASS, Nebraska, Acting as Cass County Highway Department, Appellant, and State of Nebraska et al., Appellees.

No. S-89-1158.

Supreme Court of Nebraska.

Sept. 11, 1992.

Syllabus by the Court

1. New Trial: Appeal and Error. A general rule of an appellate court is that a reversal and remand for a new trial is considered a general remand and contemplates a new trial on all of the issues.

2. Trial: Proof: Appeal and Error. All matters which expressly or by necessary implication are adjudicated by an appellate court become the law of the case on remand for new trial and will not be considered again unless it is shown that the facts presented at the second trial are materially and substantially different from the facts presented at the first trial.

John R. Douglas of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Michael G. Connery and L. Steven Grasz of Kutak Rock & Campbell, Omaha, for appellee McKinstry.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

This is a wrongful death action filed by plaintiff-appellee, Christina L. McKinstry, special administrator of the estate of Eugene McKinstry, deceased, who died when a dirt wall of a trench in which he was working collapsed. The action named as defendants WeWeldit & Repair, Inc., the deceased's employer; Husker Steel Corporation, the general contractor; and Cass County. The original trial resulted in a judgment entered by the trial court in favor of plaintiff in the amount of $244,521.88 against WeWeldit; a judgment in favor of defendant-appellant, Cass County; and a judgment in favor of Husker Steel. The judgment against WeWeldit was later set aside because of WeWeldit's immunity under the Nebraska Workers' Compensation Act.

No appeal was taken by plaintiff on the judgment in favor of WeWeldit. Plaintiff appealed the judgment in favor of Husker Steel and Cass County. In McKinstry v. County of Cass, 228 Neb. 733, 424 N.W.2d 322 (1988) (McKinstry I ), we affirmed the judgment in favor of Husker Steel and reversed the judgment in favor of the county. We held that

the county had a nondelegable duty to use due care to protect persons against injury from the hazards or risks which inhered in the particular excavation, trenching, and earthwork undertaken by the county.... Consequently, we find that the district court's conclusion, exonerating the county from liability for its negligence demonstrated by the record, is clearly erroneous.

228 Neb. at 744-45, 424 N.W.2d at 329-30.

The opinion in McKinstry I concluded: "Because we have reversed the judgment pertaining to the county, these proceedings are remanded to the district court for a new trial on McKinstry's claim against the county." 228 Neb. at 747, 424 N.W.2d at 331.

After remand, plaintiff filed a motion for summary judgment on the question of liability. On January 31, 1989, the trial court found that "the plaintiff is entitled to partial summary judgment determining that there was negligence on the part of the County of Cass" and granted plaintiff's motion for partial summary judgment.

On March 9, 1989, plaintiff filed a "Motion For Order Nunc Pro Tunc." This motion stated in part that the summary judgment order should be corrected:

3. To correct the record which has been made so that it will speak the truth and will truly express the action taken, but which through inadvertence or mistake was not truly recorded, this Court should add nunc pro tunc the following sentence to the end of its Order of January 27, 1989:

The retrial of this matter will be limited to the issue of damages only.

On March 10, 1989, the trial court filed an order granting the motion and ordering that "the matter set forth above ['[t]he retrial of this matter will be limited...