Nedela v. Mares Auto Company
| Decision Date | 10 April 1923 |
| Docket Number | 22860 |
| Citation | 193 N.W. 345,110 Neb. 108 |
| Parties | JOHN NEDELA, APPELLANT, v. MARES AUTO COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saline county: RALPH D. BROWN JUDGE. Reversed.
REVERSED AND REMANDED.
Bartos & Bartos and Grant G. Martin, for appellant.
Crofoot Frazer, Connolly & Stryker and B. V. Kohout, contra.
Heard before MORRISSEY, C. J., LETTON, DEAN and ALDRICH, JJ RAPER, District Judge.
Plaintiff recovered a judgment against defendant for personal injuries. This judgment was appealed to this court and reversed generally (Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885), for the reason that the evidence showed that both plaintiff and defendant were under the employers' liability act.
At the second trial defendant moved that plaintiff be required to elect whether he would proceed under the common law or under the employers' liability act. Plaintiff stated that he had elected at the former trial to proceed under the common law, and he stood upon that election. At the close of plaintiff's testimony, defendant moved for a directed verdict "in conformity with the mandate of the supreme court of Nebraska heretofore returned and filed in this case, and because the plaintiff's evidence is insufficient to constitute a case in favor of the plaintiff and against the defendant." This motion was sustained and the jury instructed that, "under the opinion of the supreme court rendered in this case, you should return a verdict in favor of the defendant." The action was then dismissed. Plaintiff has appealed.
On the former appeal defendant insisted that both parties were under the employers' liability act. Plaintiff argued that the defendant had not shown that the parties were under the provisions of part II of the act, because they did not prove that they had complied with the provisions of section 3687, Rev. St. 1913, as amended, now section 3069, Comp. St. 1922, and that therefore he was entitled to recover for negligence under the common law. This court held that it was not necessary for defendant to prove compliance with this section, as this would be presumed. At the second trial plaintiff furnished conclusive proof that defendant had not complied with this section, and therefore was not within the statute.
Defendant now insists that plaintiff was not entitled to make this proof, and that the decision of this court upon the former trial settled the law to the effect that both parties were under the employers' liability act, and the district court took this view. We think the court misapprehended the effect of the former decision. The case was reversed generally. At another trial plaintiff was entitled to furnish additional evidence, if necessary, to maintain his cause. A decision of a reviewing court upon the facts does not constitute the law of the case, unless the evidence at the second trial is the same, or substantially the same, as that adduced at the first trial. When an element essential to plaintiff's recovery is lacking in the first trial, but is proved at the second trial, this additional evidence cannot be ignored, and the legal questions presented must be determined according to the new aspect of the evidence. Lane v. Starkey, 20 Neb. 586, 31 N.W. 238; Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744; State v. Paxton, 65 Neb. 110, 90 N.W. 983; Gadsden v. Thrush, 72 Neb. 1, 99 N.W. 835; Sowerwine v. Central Irrigation District, 91 Neb. 457, 136 N.W. 44. The court therefore erred in instructing the jury that plaintiff was concluded by the opinion of the supreme court.
It is next contended that section 3687, Rev. St. 1913, as amended, now section 3069, Comp. St. 1922, is unconstitutional because it amends section 3653, Rev. St. 1913, as amended, now section 3035, Comp. St. 1922, without mentioning it. The act has been amended several times since 1913. As originally written section 3687 merely provided that an employer might take out liability insurance. The section as amended provides in substance that every employer shall insure his liability under the act, or he "shall furnish to the compensation commissioner satisfactory proof of his financial ability to pay direct the compensation in the amount and manner when due as provided for in this act," and every employer who refuses to comply with the conditions set forth in the section "shall be deemed to have elected not to come under part II hereof, and shall be required to respond in damages * * * in like manner as if the employer had filed an election with the compensation commissioner rejecting the provisions of part II." Section 3653 (Comp. St. 1922, sec. 3035) provided: "Every such employer and every employee is presumed to accept and come under part II hereof, unless prior to accident he shall signify his election not to accept or be bound by the provisions of part II," etc. As the law stood, an employer was under part II unless he gave either written or printed notice to the employee that he does not accept the provisions of part II. Under section 3687, as amended, now section 3069, Comp. St. 1922, if the employer fails to insure or fails to satisfy the commissioner as to his financial ability, he shall be deemed to have elected not to come under part II.
The amended section does not amend section 3653, but merely furnishes another method of evidencing that the employer does not elect to bring himself within the provisions of the act. Failure to insure allows the employee to elect whether to apply for compensation under the statute, or to depend upon legal remedies for damages for negligence. Avre v. Sexton, p. 149, post.
It is next urged that the evidence does not establish any negligence on the part of defendant. Was there sufficient evidence presented by the plaintiff to require submission of this question to a jury? The former opinion...
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