Pullen v. Novak

• Decision Date: 06 November 1959
• Docket Number: No. 34572,34572
• Citation: 169 Neb. 211,99 N.W.2d 16
• Parties: Kenneth J. PULLEN, through and by James K. Voboril, his next friend, Appellant, v. Adrian NOVAK, Erwin Boysen and Robert L. Pullen, Appellees.
• Court: Nebraska Supreme Court

Page 16

99 N.W.2d 16

169 Neb. 211

Kenneth J. PULLEN, through and by James K. Voboril, his next friend, Appellant, v. Adrian NOVAK, Erwin Boysen and Robert L. Pullen, Appellees.

No. 34572.

Supreme Court of Nebraska.

Nov. 6, 1959.

Syllabus by the Court.

1. Infants have a right to sue by a guardian or next friend to recover damages done to their person or property by the tortious acts of another.

2. Article I, section 13, of the Constitution of the State of Nebraska does not create any new rights but is merely a declaration of a general fundamental principle. It is a primary duty of the courts to safeguard this declaration of right and remedy but, where no right of action is given or remedy exists under either the common law or some statute, this constitutional provision creates none.

3. The driver of an automobile is not an insurer against injuries to children from the operation of a car. He is bound to exercise ordinary or reasonable care towards children as well as towards adults. The age, maturity, and intelligence of the child is a circumstance to be considered in determining whether or not the driver has exercised such care. Actually, in certain instances, the driver may be required to exercise greater care towards children than towards adults, but this greater care is, in one sense, but 'ordinary' care, namely, that degree of care which a man of ordinary prudence would exercise under the circumstances.

4. If a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle into motion, but if he has no reason to anticipate the presence of children near his vehicle, negligence cannot be predicated on the mere fact that he started his vehicle, injuring the child.

5. Ordinarily a driver is not required to search for children on the far side of an automobile he is about to start, or for any that may be hidden underneath or in front of it, whom, by exercising reasonable care, he cannot see before starting.

6. As a general rule an unemancipated minor child can not maintain an action against a parent, or one standing in loco parentis, for a personal tort committed by the latter against the former. However, there may be recovery if, by reason of such tort, the child is subjected to brutal, cruel, inhuman, or unreasonable treatment. Whether or not the latter is true is ordinarily a question of fact for a jury if the evidence adduced is sufficient to support a verdict to that effect.

7. For injuries caused by the negligent act of an employee not directed or ratified by the employer, the employee is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior, the rule of law which holds the master responsible for the negligent act of his servant committed while the servant is acting within the general scope of his employment and engaged in his master's business.

8. When there is no right of action in the son for personal injuries inflicted upon him by the negligent acts of the father, there can be no liability therefor on the part of the father and, since there is no liability of the father therefor, his employer can not be made to respond in damages to the son for the father's negligent acts. 9. An unemancipated child cannot sue his father to recover damages for injuries to his person resulting from ordinary negligence on the part of the father and consequently he cannot sue his father's employer to recover such damages as he has suffered therefrom for, to permit doing so, would countenance an encircling movement against the father when a direct suit against him is inhibited, the primary liability to answer for such an act resting upon the employee.

Bryant & Sullivan, Wahoo, for appellant.

Sidner, Lee, Gunderson & Svoboda, Spear, Lamme & Simmons, Fremont, Crossman, Barton & Quinlan, Omaha, for appellees.

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

WENKE, Justice.

This is an appeal from the district court for Dodge County. It involves an action brought by Kenneth J. Pullen, a minor, by and through James K. Voboril, his next friend, against Adrian Novak, Erwin Boysen, and Robert L. Pullen for the purpose of recovering damages which he allegedly suffered as a result of being struck by an automobile owned by the defendant Robert L. Pullen but operated by the defendant Adrian Novak. The basis for plaintiff's claim is negligence on the part of the defendants Robert L. Pullen and Adrian Novak in relation to Novak's operation of Pullen's car, which negligence he alleged caused the accident which resulted in his injuries.

The defendant Robert L. Pullen is plaintiff's father, the defendant Erwin Boysen was the father's employer at the time of the accident, and the defendant Adrian Novak was at that time a friend of the Pullen family.

The accident, as a result of which the plaintiff was injured, happened around 7 p. m. on June 9, 1957, on the private driveway of the then Pullen home located at 1217 North Nye Street in Fremont, Nebraska. It occurred while defendant Adrian Novak was backing the Pullen car, an Oldsmobile, which was parked on the Pullen driveway. The car, while being backed, in some manner struck plaintiff and seriously injured him.

Plaintiff's amended petition alleged that Robert L. Pullen, his father, was guilty of negligence in certain respects, setting out four specifications to that effect. Pullen demurred thereto, setting out as one of the grounds therefor that: '* * * the petition does not state facts sufficient to constitute a cause of action against the defendant, Robert L. Pullen. Said Kenneth J. Pullen being an unemancipated minor child as shown in the petition, has no right of action against the parent for the negligent tort of such parent.'

On July 22, 1958, the trial court sustained Pullen's demurrer and gave plaintiff 10 days to amend his pleadings, stating that upon failure to do so plaintiff's action would be dismissed as to Pullen. Plaintiff failed to amend his pleadings and consequently, on August 20, 1958, the plaintiff's action was dismissed as to Robert L. Pullen. Thereafter, as to this order, no further action was taken by the plaintiff in the form of a motion for new trial or notice of appeal within the time provided by statute for doing so.

Defendant Erwin Boysen filed a motion for summary judgment on September 17, 1958. This motion the trial court sustained on October 16, 1958, and thereupon dismissed the action as to defendant Boysen.

The action went to trial as to defendant Adrian Novak on October 20, 1958. At the end of plaintiff's evidence the trial court sustained Novak's motion to dismiss.

Plaintiff thereafter, on October 24, 1958, filed a motion for new trial directed at both the trial court's order sustaining defendant Erwin Boysen's motion for summary judgment and dismissing his action against said defendant and also at the trial court's order sustaining defendant Adrian Novak's motion to dismiss, claiming the trial court erred in entering both of these orders. The trial court overruled this motion for new trial and plaintiff, on December 3, 1958, perfected this appeal from that order.

This court, on February 13, 1959, on motion of appellee Robert L. Pullen, dismissed the appeal as to him. The reason for doing so is apparent from the history of this case hereinbefore set forth as it relates to appellee Pullen.

We shall hereinafter refer to Robert L. Pullen as Pullen and to his car as the Olds; we shall refer to appellee Adrian Novak as Novak and to his car as the Chevrolet; we shall refer to appellee Erwin Boysen as Boysen and to his customer's car as the Lincoln.

The principal contention made by appellant is that the evidence he adduced was sufficient to present a jury question as to Novak and that the trial court erred in sustaining Novak's motion to dismiss. As stated in Christ v. Nelson, 167 Neb. 799, 95 N.W.2d 128, 130: 'In an appeal from an order directing a verdict and dismissing an action, the party against whom the verdict was directed is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.' See, also, Segebart v. Gregory, 156 Neb. 261, 55 N.W.2d 678; Comstock v. Evans, 159 Neb. 739, 68 N.W.2d 351.

That appellant can maintain the action is beyond question. As stated in Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640, 641: 'It seems to be well established that infants have a right to sue by guardian or next friend to recover damages done to their person or property by the tortious acts of another.' However, in this respect, Article I, section 13, of the Constitution of the State of Nebraska does not create any new rights. See Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86, 87. As therein stated: 'Article I, section 13, of the Constitution of the State of Nebraska does not create any new rights but is merely a declaration of a general fundamental principle. It is a primary duty of the courts to safeguard this declaration of right and remedy but, where no right of action is given or remedy exists under either the common law or some statute, this constitutional provision creates none.'

'In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.' Weston v. Gold & Co., 167 Neb. 692, 94 N.W.2d 380, 382

"In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the...