Rehn v. Bingaman
| Decision Date | 14 April 1949 |
| Docket Number | 32592. |
| Citation | 36 N.W.2d 856,151 Neb. 196 |
| Parties | REHN v. BINGAMAN et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In view of the self-executing provisions of Article I section 13, Constitution of Nebraska, courts of this state must be open at all times to afford a remedy by due course of law for any injury done a party in his person, without denial or delay, and without reference to and wholly unaffected by the subsequent death of the wrongdoer or the party wronged.
2. Where exclusive jurisdiction of a subject matter is constitutionally conferred on county courts, and where relief sought in an action pertaining thereto but instituted in a district court is such that the county court, under powers so conferred, is authorized to grant it, the district court will be deemed to have no original jurisdiction in the premises.
3. The word 'claim' includes every species of liability which an executor or an administrator of an estate can be called upon to pay, or provide for payment, out of the general fund of the estate.
4. A contingent claim against an estate is one where the liability depends upon some future event or contingency which may or may not ever occur, and which therefore makes it wholly uncertain whether or not there ever will be a liability. Such contingency does not relate simply to the amount which may be recovered but to the uncertainty of whether or not the future event will ever occur to thereby effect a right of action or liability.
5. Liability upon an unliquidated claim for damages arising out of a tort does not depend for its creation upon the occurrence of some uncertain event in the future, and is not a contingent claim, since of necessity such a claim must be based upon the theory that the event, the tort giving rise to liability, has already occurred, and that a cause of action has already accrued and is in existence.
6. A cause of action for personal injuries alleged to have been proximately caused by negligence of a decedent during his lifetime survives, and when no action was brought thereon during his lifetime, it must be prosecuted by a claim filed against the estate of decedent in the county court which has exclusive original jurisdiction thereof.
7. A party's right of action for negligence against a third person with whom he has no contractual relation as employer and employee, is not a right given by section 48-118 R.S.1943, but a common-law right previously existent and preserved thereby.
8. The term 'third person,' appearing in section 48-118 R.S.1943, means any person other than the employer or those whom the Workmen's Compensation Act makes an employer and thus includes fellow employees.
Cranny & Moore, of Omaha, for appellant.
Emmet L. Murphy, E. Melvin Kennedy and G. H. Seig, all of Omaha, for appellees.
Heard before SIMMONS, C.J., and CARTER, MESSMORE, YEAGER CHAPPELL, WENKE, and BOSLAUGH, JJ.
This original action was filed in the district court for Douglas County against Arthur Bingaman, administrator of the estate of Alvin A. Bingaman, deceased, to recover damages for personal injuries alleged to have been proximately caused by the negligence of deceased during his lifetime. John P. Mainelli, doing business as Mainelli Construction Company, was made defendant for the sole purpose of protecting his right to subrogation as provided in section 48-118, R.S.1943, of the Workmen's Compensation Act.
After trial to a jury, plaintiff was awarded a verdict and judgment. Defendant administrator's motions for judgment of dismissal notwithstanding the verdict, and for new trial, were overruled, whereupon he appealed. His brief contains some 32 assignments of error, but as we view the record, only two propositions of law require discussion and decision to dispose of the cause. They both relate to jurisdiction of the subject matter, and are respectively: (1) Did plaintiff's cause of action survive the death of Alvin A. Bingaman, in other words, was there then existent a subject matter over which any competent court could exercise jurisdiction, and if so, (2) did the district court have original jurisdiction of the subject matter in any event, since the alleged tort occurred and plaintiff's alleged cause of action arose during the lifetime of Alvin A. Bingaman, but no action thereon was filed until after his death, and was then brought against the administrator of his estate. We conclude that the cause of action survived, but that the district court did not have original jurisdiction of the subject matter thereof.
This court has heretofore affirmatively adjudged the question of survival under almost identical circumstances, but has never directly passed upon the question of the district court's original jurisdiction of causes like the one at bar.
In re Estate of Grainger, 121 Neb. 338, 237 N.W. 153, 78 A.L.R. 597, a claim for damages for personal injuries alleged to have been proximately caused by negligence of deceased during his lifetime, was, after his death resulting from the same accident, filed against his estate in the county court for Lancaster County. Demurrer thereto was sustained and the claim was dismissed. Appeal therefrom was taken to the district court where an amended demurrer to the first cause of action for personal injuries, as pleaded in the petition on appeal, was sustained and the cause dismissed. An appeal therefrom was taken to this court, where the judgment was reversed.
In doing so, it was held: 'An action for personal injuries may be prosecuted against the estate of a decedent whose negligence is alleged to have been the proximate cause of the injury.
'The right to an action for personal injury does not abate by reason of the death of the wrongdoer before the action was brought.'
Likewise, in Wilfong v. Omaha & Council Bluffs & St. R. Co., 129 Neb. 600, 262 N.W. 537, after citing with approval and quoting from In re Estate of Grainger, supra, and Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780, it was held: 'In view of the self-executing provisions of section 13, art. 1 of our Constitution, courts of this state must be open at all times to afford a remedy by due course of law for any injury done 'a party' in his person, without denial or delay, in his out reference to and wholly unaffected by the subsequent death of the wrongdoer or the party wronged.'
Admittedly, there are authorities from other jurisdictions which have reached contrary conclusions, but it appears that they have done so either under statutes or constitutional provisions different from our own, or regardless, have applied strictly the common-law rule of 'actio personalis moritur cum persona' to the full extent of its original scope, which in the light of its conflict with our organic law and statutes, as well as our modern needs and conditions, this court has refused to do.
Contrary to defendant's contention, In re Estate of Samson, 142 Neb. 556, 7 N.W.2d 60, 144 A.L.R. 264, did not by any manner or means overrule, modify, or repudiate the conclusions reached in In re Estate of Grainger, supra, and Wilfong v. Omaha & Council Bluffs St. R. Co., supra, to which we still adhere.
That case is clearly distinguishable upon the facts. Therein a claim for widow's allowance was denied in the county court.
She appealed, but died while the appeal was pending in the district court. The executor of her estate then sought revivor, to which a plea in abatement was overruled, and the cause of action was revived in the name of her executor. This court, upon appeal therefrom, reversed the judgment and dismissed the action, concluding that the cause of action did not survive the widow's death, hence there was nothing to revive since the widow's claim for allowance was purely a personal right to support, created by statute, section 30-103, R.S.1943, which she alone could enjoy during her survival, and then only for a limited period in any event. In other words, on a par with Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630, the subject matter, the widow's status of personal survival which formed the basis of her cause of action for support while living, was destroyed by her death, and there was nothing left to survive thereafter.
In re Estate of Samson, supra, held in part: 'A cause of action created by statute does not survive unless declared so to do by the statute itself or by provisions for its survival made by some other statute.'
In the light thereof, defendant herein argued that since plaintiff's cause of action was one created by section 48-118, R.S.1943, then In re Estate of Samson, supra, controlled the case at bar, citing Muncaster v. Graham Ice Cream Co., 103 Neb. 379, 172 N.W. 52, relied upon in O'Donnell v. Baker Ice Machine Co., 114 Neb. 9, 205 N.W. 561. We cannot so hold.
In that connection, it will be observed that the proviso contained in section 48-118, R.S.1943, was added thereto by chapter 135, Laws of Nebraska, 1929, p. 489, after the foregoing opinions were written, thereby making ineffective the obiter dicta appearing in Muncaster v. Graham Ice Cream Co., supra, to the effect that such section gave 'to the injured employe a right of action where the injury complained of grew out of carelessness or negligence of a third party, * * *.'
The proviso now reads: '* * * that nothing in this section or act shall be construed to deny the right of an injured employee or of his personal representative to bring suit against such third person in his own name or in the name of the personal representative based upon such liability, * * *.' It then simply directs that 'in such event an employer having paid or paying compensation to such employee or his dependents shall be made a party to the suit for the purpose of...
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