Piechota v. Rapp

• Decision Date: 29 May 1947
• Docket Number: 32225.
• Citation: Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682 (Neb. 1947)
• Parties: PIECHOTA v. RAPP et al.
• Court: Nebraska Supreme Court

27 N.W.2d 682

148 Neb. 442

PIECHOTA v. RAPP et al.

No. 32225.

Supreme Court of Nebraska

May 29, 1947

[Copyrighted Material Omitted]

Syllabus by the Court.

1. It is proper for the trial court within its sound discretion to allow amendments to the pleadings where, without any specific directions, the cause has been remanded generally.

2. An adult son of the owner of a family purpose automobile who was on vacation visiting his parents, and while so doing used the automobile for his own purposes with the owner's consent, was not a member of the owner's family within the scope of the family purpose doctrine.

3. The admission of evidence based on skid marks as to the speed of a car, as detailed in the opinion, held prejudicial error.

4. The admission of evidence as to the possible earning capacity of a deceased child, under the facts as detailed in the opinion, held to permit the jury to calculate plaintiff's damages upon a purely speculative, uncertain, and conjectural basis, and to be prejudicial error.

5. Where the evidence shows that the deceased child lived with and assisted her grandmother, it was not error to permit the mother (plaintiff) to testify that the grandmother was dependent on the mother for support.

6. A plea of guilty entered by the defendant in a criminal action may be used against him as an admission that he committed the acts charged against him, in any subsequent action to which he is a party and which involves the same subject-matter.

7. Where an only child, born out of wedlock, dies intestate without issue, the mother is next of kin as that phrase is used in section 30-810, R.S.1943.

8. That a matter is judicially noticed means merely that it is taken as true without the offering of evidence by the party who should ordinarily have done so. It has no other effect than to relieve one of the parties of the burden of resorting to the usual forms of evidence.

Davis & Vogeltanz, of Ord, and Kirkpatrick & Dougherty, of York, for appellants.

H G. Wellensiek, and Donald H. Weaver, both of Grand Island, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

SIMMONS Chief Justice.

This action is brought under the provisions of sections 30-809 and 30-810, R.S.1943, to recover damages for the death of a 17-year-old girl. Plaintiff is the mother of the deceased. Defendant John Rapp was the owner of the car and father of defendant Carl Rapp, the driver of the car. Issues were made and trial to a jury had, resulting in a verdict and judgment for the plaintiff against both defendants. Defendants appeal. We reverse the judgment of the trial court and remand the cause.

The accident happened about one a. m., July 4, 1945, on a black-top highway in Ashton, Nebraska. Approaching the scene of the accident there was a slight turn to the right in the highway and then a sharp turn to the left. The car, following a curved course, went off the highway and struck the corner of a building, wrecking the car, and causing the instant death of the decedent.

Plaintiff sued as administratrix of the estate in a petition filed April 27, 1946, and alleged that she was sole and only next of kin. Plaintiff charged negligent and careless operation in several particulars. Summarized, they were that defendant operated the car while under the influence of intoxicating liquor and was grossly negligent. Relying on the family purpose doctrine, defendant John Rapp was joined as the owner of the car.

Defendant John Rapp answered, admitted that plaintiff was administratrix, denied generally, and alleged that deceased was riding in the car as the guest of Carl Rapp; that defendant Carl Rapp had reached his majority and was not a member of defendant John Rapp's family; and that the car was not being used on any business of defendant John Rapp and not for a family purpose.

Defendant Carl Rapp answered, admitted that plaintiff was administratrix, denied generally, and alleged that the deceased was a guest and that he was not on a joint enterprise with deceased. These answers were filed August 6, 1946.

A reply was filed August 17, 1946, to these answers, denying new allegations not consistent with the petition.

The cause came on for trial September 18, 1946. At the opening of the trial defendants asked leave to file an amended answer setting up the defenses of assumption of risk, contributory negligence, and joint enterprise. Plaintiff objected. The trial court denied leave to file the amended answer on the ground that the change of issues might result in a delay of the trial. The matter went to trial on the issues as made.

At the time of the hearing on motions for new trial, which were based in part on the refusal to permit the filing of an amended answer, evidence was offered that on Friday, September 13, 1946, additional counsel for defendants entered the case; that they then advised plaintiff's counsel that leave would be asked to file an amended answer setting up these defenses; that plaintiff's counsel advised defendants' counsel he would object; that the proposed amended answer was not submitted to plaintiff's counsel until the morning the case was for trial; and that court was open on the day of September 17, and no effort then was made to secure leave to file. Plaintiff's counsel was present in court that day. Defendants' first assignment of error is that the trial court erred in denying defendants the right to file the amended answer.

For errors, to be discussed later herein, the judgment must be reversed and the cause remanded. It is proper for the trial court within its sound discretion to allow amendments to the pleadings where, without any specific directions, the cause has been remanded generally. 5 C.J.S., Appeal and Error, § 1969, subsec. d, p. 1522; 3 Am.Jur., Appeal and Error, § 1241, p. 737; State ex rel. Davis v. American State Bank, 115 Neb. 81, 211 N.W. 201; Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821. Accordingly, we do not deem it necessary to determine whether or not the trial court erred in denying permission to file the amended answer.

Defendants' next assignment of error is that the trial court erred in instructing the jury that if they found the defendant Carl Rapp liable, then the defendant John Rapp was liable as owner of the car under the family purpose doctrine. We have followed the family purpose doctrine. In Linch v. Dobson, 108 Neb. 632, 188 N.W. 227, 228, we held: 'Where the head of a family has purchased or maintains a car for the pleasure of his family, he is, under the so-called 'family purpose' doctrine, held liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner.' There is no question but that the car here involved was maintained for a family purpose. The question comes, was defendant Carl Rapp a member of the family of the defendant John Rapp within the scope of that doctrine?

The defendant Carl Rapp is an adult, unmarried son of the defendant John Rapp and was 26 years of age at the time of the accident. He left home in 1939 and went to California where he secured employment and where he had been living. He had been employed as a locomotive fireman on the Southern Pacific Railroad for three years prior to his visit home. He came home for a visit about June 1, 1945. He ate, slept, and lived at the home of his parents. He paid nothing for these accommodations. He was treated as a son in the home and reciprocated to his parents in kind. While home he drove the car when and as he wanted with his father's consent. He intended to leave for the return trip to California the morning of July 4. On the evening of July 3, he took the car with his father's knowledge and consent, and drove to Farwell to visit relatives. Another man accompanied him. While there he went to a wedding dance, met the deceased, and agreed to take her and another girl home to Ashton. The accident followed on the return trip. Sometime during the latter part of July, he returned to California.

In Hogg v. MacDonald, 128 Neb. 6, 257 N.W. 274, 276, we adopted and followed the following rules for determining the existence of the family relation under the family purpose doctrine:

"1. It is one of social status, not of mere contract.

"2. Legal or moral obligation on the head to support the other members.

"3. Corresponding state of dependence on the part of other members for their support." See, also, Gorman v. Bratka, 139 Neb. 718, 298 N.W. 691.

In Creaghead v. Hafele's Administrator, 236 Ky. 250, 32 S.W.2d 997, the court was presented with a case essentially similar in facts to the instant case. There an adult daughter, self-supporting, residing in another state, while spending her vacation at home was using her father's car with his consent for her own purposes. She was involved in an accident resulting in the death of a child. The court held that the father was not liable under the family purpose doctrine, stating that the father 'was under no obligation, moral or legal, to support her, and at the time of the accident she was merely a visitor in his home,' and the fact that the car was being used for the purpose of the daughter with the consent of the father was not sufficient to establish liability. See, also, Scott v. Greene, 242 Ill.App. 405; Jones v. Golick, 46 Nev. 10, 206 P. 679; McGee v. Crawford, 205 N.C. 318, 171 S.E. 326; Cole v. Wright, Tex.Civ.App., 18 S.W.2d 242; Adkins v. Nanney, 169 Tenn. 67, 82 S.W.2d 867; Miracle v. Cavins, 254 Ky. 644, 72 S.W.2d 25.

We are of the opinion that the...