Montgomery v. Blazek
| Decision Date | 02 December 1955 |
| Docket Number | No. 33825,33825 |
| Citation | 161 Neb. 349,73 N.W.2d 402 |
| Court | Nebraska Supreme Court |
| Parties | J. Wesley MONTGOMERY, Appellant, v. Roy W. BLAZEK, Department of Roads & Irrigation of the State of Nebraska, Appellees. |
Syllabus by the Court.
1. A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.
2. A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded.
3. Where the language of a statute is plain and unambiguous there is no occasion for construction, and the statute must be given effect according to its plain and obvious meaning.
4. If the language of a statute is clear and unambiguous, courts will not by interpretation or construction usurp the function of the lawmaking body and give it a meaning not intended or expressed by the Legislature.
5. The purpose of the Motor Vehicle Safety Responsibility Act is to protect the public on the highways against the operation of motor vehicles by financially irresponsible persons and thus is referable to the police power of the state. This power is inherent in every sovereignty and permits the enactment of laws, within constitutional limits, to promote the general welfare of its citizens. Therefore, in the interests of the public the state may make and enforce regulations reasonably calculated to promote care on the part of those who use its highways.
6. A license to operate an automobile upon the highways of the state is a privilege and not a property right, and the power given the Department of Roads and Irrigation to suspend such operating privileges is an administrative and not a judicial function.
7. Provision is made by section 60-503, R.R.S.1943, that any person aggrieved by an order or act of the Department of Roads and Irrigation made under the Motor Vehicle Safety Responsibility Act, sections 60-501 to 60-569, R.R.S.1943, may, within 10 days after notice thereof, file a petition in the district court of the county where the aggrieved party resides for review of the proceedings had before the department.
Martin A. Cannon, Jr., Matthews, Kelley, Fitzgerald & Delehant, Omaha, for appellant.
Clarence S. Beck, Atty. Gen., Herbert T. White, Homer G. Hamilton, Asst. Atty. Gen., Omaha, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
J. Wesley Montgomery filed his amended petition in the district court for Douglas County wherein he made Roy W. Blazek and the Department of Roads and Irrigation of the State of Nebraska defendants. For convenience we will at times hereafter refer to the Department of Roads and Irrigation as the department.
While the amended petition did not designate the position held by Roy W. Blazek with the department at the time of the filing of the amended petition, he was Chief Supervisor of Financial Responsibility of the Motor Vehicle Division of the department.
The purpose of the action was to permanently enjoin the enforcement of an order of the Motor Vehicle Division of the Department of Roads and Irrigation of the State of Nebraska under the authority of the Nebraska Motor Vehicle Safety Responsibility Act. This order required the plaintiff to surrender his license plates and motor vehicle driver's license, and suspended the driver's license. The order was issued pursuant to the Motor Vehicle Safety Responsibility Act, Laws 1949, c. 178, p. 482, hereinafter called the Act.
The defendants filed a general demurrer to the plaintiff's amended petition on the grounds that such petition did not state a cause of action. The trial court sustained the demurrer and dismissed the case. The plaintiff filed a motion for new trial. The motion for new trial was overruled and the plaintiff perfected appeal to this court.
We will refer to the parties as designated in the district court.
The amended petition set forth the following factual situation: The plaintiff is a resident of Omaha, Douglas County, Nebraska, and the holder of Nebraska license plates and Nebraska driver's license. On or about February 26, 1954, plaintiff was the driver of an automobile which was involved in a collision with one Robert Conn at Twenty-fourth and Cuming Streets in Omaha, Nebraska, resulting in property damage to the Conn automobile. The plaintiff, at the time of the accident, had no liability insurance. Thereafter the plaintiff paid in full the property damage in the amount of $108.72. Plaintiff further agreed to pay all the medical expenses of Conn resulting from the accident and claimed injury to Conn's wife, Louise, a passenger in Conn's car at the time. The petition further alleged that in consideration of payment of the property damage and in further consideration of plaintiff's promise to pay the medical expenses, the Conns, and each of them, did on February 26, 1954, orally agree to release and discharge the plaintiff from all liability arising out of the said accident and at the time Robert Conn executed and delivered to the plaintiff a property damage release. Thus release bears the date of March 11, 1954. Following said agreement and release, the plaintiff at various times tendered payment of medical expenses to the Conns but his tender was refused by them. As a result the plaintiff alleged that he had been released of all liability to the Conns by an oral and written release which the Conns wrongfully refused to acknowledge, and as a result of said release plaintiff is entitled to retain his operating privileges and license plates. Plaintiff filed with the defendants the original of exhibit 'A', the personal property release, and an affidavit, exhibit 'B', setting out the facts appearing in the amended petition. A copy of exhibits 'A' and 'B' were attached to the petition.
Plaintiff further alleged that prior to the time of the filing of the affidavit the defendants, acting under the purported authority of the Nebraska Motor Vehicle Safety Responsibility Law, had demanded the surrender of plaintiff's license plates and operator's license and ordered said license to be revoked; that following the filing of the affidavit, plaintiff requested the order to be withdrawn; that notwithstanding said request and filing, defendants refused to withdraw said order although by filing the originals of exhibits 'A' and 'B' plaintiff had complied with the law and therefore had a right to possession and use of the driver's license and plates; that by reason of the filing of exhibits 'A' and 'B' he had provided evidence of release to the defendants which should be accepted as sufficient to entitle him to a revocation of the suspension; and that nevertheless the defendants wrongfully refused this revocation of the suspension order.
A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact. A general demurrer tests the substantive legal rights of parties upon admitted facts, including proper and reasonable inferences of law and fact which may be drawn from facts which are well pleaded. See In re Estate of Halstead, 154 Neb. 31, 46 N.W.2d 779.
The sections of the Act involved in the instant case are as follows.
Section 60-507, R.S.Supp., 1953, provides: 'Within sixty days after the receipt of a report of a motor vehicle accident within this state which has resulted in bodily injury or death, or damage to the property of any one person, including such operator, to an apparent extent in excess of one hundred dollars, the department shall suspend (1) the license of each operator and all registrations of each owner of a motor vehicle in any manner involved in such accident, (2) the privilege, if such operator is a nonresident, of operating a motor vehicle within this state, and (3) the privilege, if such owner is a nonresident, of the use within this state of any motor vehicle owned by him, unless such operator, owner, or operator and owner shall deposit security in a sum which shall be sufficient, in the judgment of the department, to satisfy any judgment or judgments for damages resulting from such accident which may be recovered against such operator, owner, or operator and owner; Provided, notice of such suspension shall be sent by the department to such operator and owner not less than ten days prior to the effective date of such suspension and shall state the amount required as security.'
Section 60-508, R.R.S.1943, provides: 'Sections 60-507 to 60-509 shall not apply: (1) To such operator or owner if such owner had...
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