Rehn v. Bingaman, No. 32592.

• Court: Supreme Court of Nebraska
• Writing for the Court: CHAPPELL
• Citation: 151 Neb. 196,36 N.W.2d 856
• Parties: REHN v. BINGAMAN et al.
• Decision Date: 14 April 1949
• Docket Number: No. 32592.

151 Neb. 196
36 N.W.2d 856

REHN
v.
BINGAMAN et al.

No. 32592.

Supreme Court of Nebraska.

April 14, 1949.

Appeal from District Court, Douglas County; Dineen, Judge.

Action by Eric H. Rehn against Arthur Bingaman, administrator of estate of Alvin A. Bingaman, deceased, and another, for personal injuries caused by negligence of deceased during his lifetime. From a judgment for plaintiff, the named defendant appeals.

Reversed and cause dismissed.

[36 N.W.2d 857]

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.

CHAPPELL, Justice.

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

[36 N.W.2d 858]

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...