Mo. Pac. Ry. Co. v. Fox

• Decision Date: 17 November 1898
• Parties: MISSOURI PAC. RY. CO. v. FOX.
• Court: Nebraska Supreme Court

56 Neb. 746

77 N.W. 130

MISSOURI PAC. RY. CO.

v.FOX.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. When revivor of an action is sought by conditional order, the hearing in pursuance thereof is the proper occasion to try the right of the successor in whose name revivor is attempted. By the absolute order, that matter becomes res judicata, and cannot be retried with the case on its merits.

2. Service of a conditional order of revivor must be in the same manner as a summons, and it seems that service upon the attorney of record is insufficient unless a summons may be so served.

3. The authority of an attorney who actually enters an appearance will be presumed to justify him in so doing.

4. A failure to serve a conditional order of revivor goes only to the jurisdiction of the person, and is waived by a voluntary general appearance.

5. When a cause has been revived by conditional order duly made absolute, it is not essential that amended or supplemental pleadings be filed alleging the capacity of the new party, as such averments would not be traversable, and the fact already appears of record.

6. For the same reason it is proper to refuse the adverse party leave, by supplemental pleadings, to tender an issue based on the matter of revivor.

7. The doctrine of comparative negligence has no place in the jurisprudence of this state. It is therefore error to instruct the jury that plaintiff may recover, although guilty of contributory negligence, provided the negligence of defendant was gross, and that of plaintiff slight in comparison.

8. A positive misstatement of the law in an instruction is not cured by a further correct statement in conflict with the first.

9. Expert testimony is incompetent where the subject of inquiry is of such a character as to be within the knowledge of men of common education and experience, and to call for no special skill, knowledge, or experience.

10. A hypothetical question should not be permitted when it only in part calls for the exercise of special skill or knowledge, and for the rest asks the witness to base his opinion on matters within the ordinary experience of men.

Error to district court, Cass county; Ramsey, Judge.

Action by William K. Fox, administrator of the estate of Amos Thompson, deceased, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

B. P. Waggoner, James W. Orr, A. N. Sullivan, and C. S. Polk, for plaintiff in error.

Matthew Gering, for defendant in error.

IRVINE, C.

This is an action against the Missouri Pacific Railway Company to recover damages for the death of Amos Thompson, alleged to have been caused by the negligence of defendant. The case was in this court once before, and a judgment for the defendant was reversed. Thompson v. Railway Co., 51 Neb. 527, 71 N. W. 61. A second trial resulted in a judgment for the plaintiff, and the defendant this time seeks a reversal.

Between the two trials the widow of the deceased, who, as administratrix, brought the action, remarried, and, her powers as administratrix ceasing from that fact, Fox seems to have been appointed as her successor. On Fox's application, a conditional order of revivor was entered, which in due time was made absolute. No amendment of the petition was made nor was a supplemental petition filed, and the case was tried on the original petition, which avers that Mrs. Thompson is the personal representative, and that she sues as such. This course of proceeding gives rise to certain assignments of error, which, as they present questions in limine, should be disposed of before approaching the merits.

The defendant sought leave to file a supplemental answer, alleging the cessation of Mrs. Thompson's powers as administratrix, and leave to do so was denied. It then, by objections to the evidence, sought to exclude proof of Fox's authority and to deny his right. Under our system of practice, where a party dies or his authority as a representative ceases, two methods of revivor coexist. A conditional order of revivor may issue and be served, and the order made final, unless cause be shown against it, or the court may substitute the new party, and supplemental pleadings may be filed and summons served. Fox v. Abbott, 12 Neb. 328, 11 N. W. 303;Rakes v. Brown, 34 Neb. 312, 51 N. W. 848. If the former method be pursued, the proper method of traversing the claim of the person in whose name revivor is attempted is by showing cause against the absolute order. An issue is thus tendered, and, if the court make the order absolute, that order becomes res judicata as to the right of the person named to proceed with the action, and the issue cannot be again made and tried with the main case. Hendrix v. Rieman, 6 Neb. 516.

It is asserted, however, that there was here no proper service of the conditional order. The manner of service does not appear, unless by inference. The conditional order bears an indorsement of acceptance of service by A. N. Sullivan, attorney for defendant, reserving the right to interpose any objections to the manner of service. The conditional order should be served in the same manner as a summons. Code Civ. Proc. § 461. It would seem, therefore, that service upon the attorney of record in the cause would be insufficient. But no one can doubt that an attorney may be authorized to enter a voluntary appearance for his client, and the authority of an attorney at law to appear, where he has...