Mueller's Estate, In re

• Decision Date: 04 April 1958
• Docket Number: No. 34304,34304
• Parties: Estate of Herbert G. MUELLER, deceased. Merle H. FINCHAM, Jr., by Merle H. Fincham, Sr., his father and next friend, Appellant, v. Wilbert L. MUELLER, Administrator of the Estate of Herbert G. Mueller, deceased, Appellee.
• Court: Nebraska Supreme Court

Page 137

89 N.W.2d 137

166 Neb. 376

Estate of Herbert G. MUELLER, deceased.

Merle H. FINCHAM, Jr., by Merle H. Fincham, Sr., his father and next friend, Appellant, v. Wilbert L. MUELLER, Administrator of the Estate of Herbert G. Mueller, deceased, Appellee.

No. 34304.

Supreme Court of Nebraska.

April 4, 1958.

Syllabus by the Court

1. In this state the action of an infant must be brought by his guardian or next friend, who alone is liable for the costs.

2. One who has a direct legal interest in the result of a cause, in which the adverse party is the representative of a deceased person, is not, in certain situations, a competent witness therein; liability for the costs of the action is such a direct legal interest.

3. A direct legal interest in the result of an action disqualifies a witness from testifying to any transaction or conversation with the deceased, whether such interest be great or small.

4. The word 'transaction,' as used in section 25-1202, R.R.S.1943, embraces every variety of affairs, the subject of negotiations, actions, or contracts between the parties.

5. Section 25-1202, R.R.S.1943, makes no distinction between actions based on contract and actions based on tort. Nor do we think there is any distinction in reason. The statutory policy that living parties should not be permitted to tell their stories when the lips of adverse parties are sealed by death applies with equal force to torts and contracts. In torts, as in contracts, all the parties ordinarily are cognizant of the circumstances attending the tort. And if by reason of death some of them cannot testify, the others should not. That is the policy of the statute.

6. A transaction or conversation, within the meaning of section 25-1202, R.R.S.1943, is an action participated in by witness and decedent and to which the decedent could testify of his own personal knowledge, if alive.

7. An automobile accident is a 'transaction' within the meaning of section 25-1202, R.R.S.1943, and the disqualification provided for therein has application when the factual situation brings it within the scope thereof.

8. Negligence is a question of fact and may be proved by circumstantial evidence. All that the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of.

9. Negligence is never presumed. The burden of proving negligence is on the party alleging it and merely establishing that an accident happened does not prove it.

Richards, Yost & Schafersman, Fremont, for appellant.

Spear, Lamme & Simmons, Fremont, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an appeal from the district court for Dodge County. The cause of action appealed had its origin in the county court of Dodge County when, on March 6, 1956, Merle H. Fincham, Sr., as next friend and father of Merle H. Fincham, Jr., filed a claim in his son's behalf against the estate of Herbert G. Mueller, deceased, then being probated therein, for damages which he claims Merle H. Fincham, Jr., suffered as a result of injuries received in an accident which it is claimed was caused by the negligent conduct of Herbert G. Mueller. The county court disallowed the claim and an appeal was taken therefrom to the district court for Dodge County. A trial was had and, at the conclusion of plaintiff's (claimant's) evidence, the trial court sustained defendant's motion for a directed verdict and dismissed plaintiff's petition. Plaintiff thereupon filed a motion for new trial and this appeal was taken from the overruling thereof.

The basic facts as to the accident in which Merle H. Fincham, Jr., whom we shall hereinafter refer to as the son, was injured are not in dispute. The accident happened about 12:05 p. m. on Saturday, October 29, 1955, in a county road intersection located about 6 1/2 miles north and slightly west of Ames, Nebraska. At the time of the accident Merle H. Fincham, Sr., whom we shall hereinafter refer to as the father, was driving his 1955 Chevrolet station wagon with his son, who was then 8 years of age, as his guest. He was driving from Ames, Nebraska, to Snyder, Nebraska, on business and, at the time, was proceeding in a northerly direction. At this same time Herbert G. Mueller, whom we shall hereinafter refer to as decedent, was driving his 1954 Chevrolet sedan in an easterly direction toward the intersection wherein the accident occurred. The traveled portion of both the east-west and north-south roads were graveled to a width of some 18 to 20 feet, travel being generally down the center of the graveled part thereof. At the intersection, and for a distance of some 100 to 150 feet to the west and south thereof, the road was quite level, however, further on it sloped downgrade to the south and upgrade to the west. At the southwest corner of the intersection, and extending to the west therefrom, were trees, bushes, and grass. The trees and bushes still carried their foliage. These trees, bushes, and grass came fairly close to the southwest corner and, because thereof, substantially obstructed the vision of the drivers of cars coming from either the west or south to see cars coming toward the intersection on the other of these two roads. The weather was cold, windy, and somewhat cloudy, but the road was dry. The debris from the impact of the car and station wagon, which consisted of chrome from the grille and glass from the parking lights and headlights of the station wagon, indicates the collision took place at about the center of the intersection, and the damage to the vehicles indicates that the front of the station wagon hit the right side of the sedan at about the center thereof. As a result of the impact the sedan rolled over and came to rest on its top in the ditch on the north side of the east-west road and just to the east of the intersection. It was facing northwest when it came to rest but more west than north. The front end thereof was some 43 feet from the center of the intersection. The driver thereof, Herbert G. Mueller, was killed. The station wagon continued on north after the impact, coming to a stop with the front end, which was facing north, some 47 feet 8 inches from the center of the intersection. It stopped to the east of the graveled portion of the north-south road and just out of the intersection. It was facing generally north but slightly to the northwest. As a result of the accident the son was injured.

As a basis for recovery it is claimed that decedent was negligent in the following respects and that such conduct on his part was the proximate cause of the accident and the resulting injuries to the son, to wit:

'(a) In driving his car at a high and dangerous rate of speed and at a rate of speed greater than was reasonable and proper and not having any regard for the traffic and conditions of the road, to-wit: 60 miles per hour.

'(b) In failing to have his car under proper control.

'(c) In failing to keep a proper lookout for other traffic upon said roads and in particular, for traffic to his right at the intersecting County road.

'(d) In failing to yield the right-of-way to the automobile in which this plaintiff was riding, said automobile being on his right.

'(e) In failing to yield the right-of-way to the automobile in which this plaintiff was riding, the same being the first in said intersection.

'(f) In failing to apply his brakes in time to avoid colliding with the automobile in which the plaintiff was riding.'

There is no question here of imputed negligence as the son was riding as a guest of his father.

There are three questions raised by appellant: First, did the trial court err in holding that the father and next friend had a direct legal interest in the suit within the meaning of section 25-1202, R.R.S.1943? Second, if so, was he barred from testifying as to the acts of the decedent driver and of himself in regard to the operation of their respective vehicles immediately before and at the time of the collision? And third, did the trial court err in directing a verdict at the conclusion of appellant's case?

It is apparent that the trial court applied section 25-1202, R.R.S.1943, to certain testimony of the father. He excluded all the testimony of the father, which was properly offered, as to what he observed as to decedent's car but, with some exceptions, permitted him to testify in regard to his own vehicle and his operation thereof. Since the question presented has never been passed on by this court, and is now properly before us, we will consider the matter of whether or not an automobile accident can be said to be a transaction within the meaning of the statute.

Section 25-1202, R.R.S.1943, insofar as here material, provides: 'No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, * * *.'

Section 25-308, R.R.S.1943, provides: 'The guardian or the next friend is liable for the costs of the action brought by him, and, when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him.'

In Kleffel v. Bullock, 8 Neb. 336, 1 N.W. 250, we held: 'In this state the action of an infant must be brought by his guardian or next friend, who alone is liable for the costs. The infant is not liable to a judgment therefor.' See, also, sections 25-307 and 25-308, R.R.S.1943.

'One who has a direct legal interest in the result of a cause, in which the adverse party is administrator of a deceased person, is not a competent witness therein. Liability for the costs of the action is such an interest.' Ransom v. Schmela, 13 Neb. 73, 12 N.W. 926. See, also, Smith v. Perry, 52...