Mimick v. Beatrice Foods Co., 34466

• Decision Date: 19 December 1958
• Docket Number: No. 34466,34466
• Citation: 93 N.W.2d 627,167 Neb. 470
• Parties: Angeline MIMICK, Appellee, v. BEATRICE FOODS COMPANY, a corporation, Appellant. Impleaded with The Travelers Insurance Company, a corporation, Lewis Frieze, and Pegler & Co., a corporation, Appellees.
• Court: Nebraska Supreme Court

Page 627

93 N.W.2d 627

167 Neb. 470

Angeline MIMICK, Appellee, v. BEATRICE FOODS COMPANY, a corporation, Appellant Impleaded with The Travelers Insurance Company, a corporation, Lewis Frieze, and Pegler & Co., a corporation, Appellees.

No. 34466.

Supreme Court of Nebraska.

Dec. 19, 1958.

Syllabus by the Court.

1. An appeal from an order of the district court granting or denying a motion for a judgment notwithstanding the verdict requires this court to consider the entire record and to determine whether it does or does not justify the action of the trial court.

2. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.

3. The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured.

4. The term 'bailment' is comprehensively defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.

5. The general rule is that a bailor is not liable to third persons for their injuries resulting from the bailee's negligent use of the property bailed.

6. In the absence of special agreement, a bailor is under no duty or obligation to inspect or repair the property bailed while it is in possession of the bailee, and if there is a contract to repair upon notice that repairs are necessary, a duty to repair does not arise until notice is given.

Chambers, Holland, Dudgeon & Hastings, Lincoln, Byron Reed, Columbus, for appellant.

Wagner, Wagner & Conrad, Cleo F. Robak, Columbus, for Mimick.

Walter, Albert & Leininger, Columbus, Frederick M. Deutsch, Norfolk, for the Travelers Ins. Co., and others.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Angeline Mimick, brought this action against defendant, Beatrice Foods Company, and others, seeking recovery of damages for personal injuries received when a milk dispenser, owned by and alleged to have been negligently installed and maintained on top of a bun warmer by defendant Beatrice Foods Company, fell therefrom down upon plaintiff while she was an employee of defendant, Lewis Frieze, in a cafe owned and operated by him. Lewis Frieze was made defendant as required by the workmen's compensation law.

For answer, Beatrice Foods Company, hereinafter called defendant, denied generally and specifically denied that it installed or maintained said milk dispenser. Defendant then admitted that plaintiff was employed by Frieze as alleged, and admitted that defendant owned the dispenser which it had delivered to the premises of Frieze, but alleged that the dispenser was in the exclusive custody and control of and was installed and maintained by Frieze or Pegler & Company, or both of them; and that if same were negligently installed and maintained, it was due to their negligence. Plaintiff's reply was a general denial.

A jury trial was had, and at conclusion of all the evidence defendant moved for a directed verdict or dismissal of plaintiff's action because the evidence was insufficient to sustain a cause of action in favor of plaintiff, and because there was want of any proof that defendant was negligent in any respect as alleged by plaintiff. However defendant's motion was overruled, and upon submission to a jury, it returned a verdict awarding plaintiff damages against defendant, and judgment was rendered accordingly. Thereafter, defendant's motion for new trial or in the alternative for judgment notwithstanding the verdict and judgment was overruled, and defendant, Beatrice Foods Company, appealed. In doing so, defendant assigned: (1) That the verdict and judgment were contrary to the evidence and law; and (2) that the trial court erred in overruling defendant's motion for directed verdict or dismissal, and in overruling defendant's motion for judgment notwithstanding the verdict and judgment. We sustain the assignments.

In Edgar v. Omaha Public Power Dist., 166 Neb. 452, 89 N.W.2d 238, 239, we recently reaffirmed that: 'A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of 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. Such 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 evidence.

'An appeal from an order of the district court granting (or denying) a motion for a judgment notwithstanding the verdict requires this court to consider the entire record and to determine whether it does or does not justify the action of the trial court.

'Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question, as a matter of law, rather than submit it to a jury for determination.'

We also reaffirmed in Wolcott v. Drake, 162 Neb. 56, 75 N.W.2d 107, that: 'The burden of proving negligence is on the party alleging it. * * *

'Negligence is not presumed; the mere happening of an accident does not prove negligence.

'The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured.'

When considered in such light, the pertinent evidence as summarized, discloses the following: Frieze had operated a new highway cafe at Columbus since March 9, 1955. His floor plans therefor had been provided by Pegler & Company, from whom he had purchased all his fixtures and equipment except a milk dispenser. When that company installed such fixtures and equipment, an electrically-heated bun warmer was purchased from it by Frieze and placed on the floor against the kitched wall, according to plans. The bun warmer was a large, square, stainless steel cabinet, about 3 feet high, which, having adjustable legs, stood on the floor and contained three drawers which operated on some kind of bearings, but a flick, or quick opening or closing thereof, would cause some jar or vibration of the cabinet.

Frieze had made arrangements with defendant's general manager to buy, pay for, and use its dairy products, but defendant owned and agreed to deliver and furnish Frieze a milk dispenser for use in his cafe. Such dispenser was a large stainless steel cabinet which stood on four stainless steel cone-shaped legs about 1 1/2 inches high. Such legs had plastic buttons about the size of a nickel on the bottoms thereof. The dispenser had room for two cans of milk and was equipped with faucets from which milk could be and was drawn by employees of Frieze and served to customers of his cafe. The cans of milk were placed in the dispenser daily except Sundays by an employee of defendant after the empty cans had been removed. The dispenser had been delivered to the cafe by employees of defendant...