Nelson v. Johansen
| Decision Date | 06 October 1885 |
| Citation | 24 N.W. 730,18 Neb. 180 |
| Parties | ANDREW NELSON, PLAINTIFF IN ERROR, v. ANNA K. JOHANSEN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before WAKELEY, J.
AFFIRMED.
C. A Baldwin, for plaintiff in error.
John C Cowin, for defendant in error.
Plaintiff in error having failed to appear in this cause, and having filed no brief, the cause was submitted by defendant in error without brief or argument, according to the provisions of rule four of this court, in force at the time the same was filed.
While it could not be expected that, without the aid of briefs and arguments of counsel calling the attention of the court to the errors complained of, we can be able to give the case that critical examination which it would otherwise receive, yet we devote to it sufficient attention to examine the questions presented by the record, and ascertain whether such errors appear of record as to require the reversal of the case.
The action in the district court was brought by defendant in error by her next friend, she being a minor. The petition alleges that in the year 1880, when she was of the age of ten years, her father, by agreement with defendant in error, sent her to the home of defendant in error to reside with and work for his family until the 5th day of December, 1880, and that at that time and upon that day--the weather being very cold--plaintiff in error sent her home across the prairie, a distance of about one mile and a half, so poorly and thinly clad, and so exposed to the inclement weather, that on her way she was badly frozen, so that she was for a long time sick, confined to her bed and suffered great pain, etc., and whereby she was greatly damaged, to-wit, in the sum of $ 5,000, for which she asked judgment.
The answer of plaintiff in error, after admitting the fact of defendant in error residing with him, and leaving him at the time alleged, denies all improper treatment of defendant in error on his part; alleges that she came to live with him for the term of three years, but, at the instigation and by command of her parents, left him on the day named without any knowledge on his part as to what clothing she wore, and while he was from home; that she was provided with suitable clothing, some of which she had left at her own home; and pleading such other facts as if established by proof would exonerate him from any charge of cruel or improper treatment of defendant in error. The trial resulted in a verdict and judgment in favor of defendant in error for the sum of two hundred and fifty dollars.
The errors assigned in the petition in error are, that the court erred in giving certain instructions referred to by numbers, and in refusing others which are designated in the same way. Also that the verdict is contrary to law, and is contrary to and against the weight of the evidence in the case. Other general assignments are made in the usual statutory form.
As to the first assignment of error, that the court erred in giving the instructions, six in number, referred to, it is sufficient to say that we have examined them, and do not detect any misstatements of the law or improper directions to the jury.
The instructions refused, and of which refusal complaint is made, are as follows:
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