Rueger v. Hawks
| Citation | 36 N.W.2d 236,150 Neb. 834 |
| Decision Date | 03 March 1949 |
| Docket Number | 32488. |
| Parties | RUEGER v. HAWKS et al. |
| Court | Supreme Court of Nebraska |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. A party may raise the question of jurisdiction over his person for the first time in his answer. If instead of answering he files a motion attacking the petition, he thereby waives the question of jurisdiction over his person.
2. Where a party files a motion attacking the petition instead of answering and obtains some relief thereby, and subsequently answers the petition not raising the question of the jurisdiction of the court over his person, he cannot afterwards make such defense in an amended answer.
3. In the absence of a statute rendering children under a specified age incompetent, or presumably so, a witness is not disqualified because of his youth.
4. There is no precise age which determines the question of his competency, it depending upon his capacity and intelligence and his appreciation of the difference between truth and falsehood.
5. The question of the competency of such a witness rests largely in the sound discretion of the trial court, whose decisions will not be disturbed in the absence of clear abuse.
6. A party is entitled to the benefit of the testimony of other witnesses in contradiction of his own, wherever his own is not of the character of a judicial admission, and concerns only some evidential or constitutent circumstance of his case.
7. Where there is a reasonable dispute as to the pertinent physicial facts, the conclusions to be drawn therefrom are for the jury, and a verdict based thereon will not be disturbed unless clearly wrong.
8. Where the trial court admits evidence over objection, on the promise of counsel that he will make it competent by the introduction of connecting evidence, or where he conditionally sustains or overrules an objection to the introduction of evidence because he is unable to decide the question of its competency at the time, and no further ruling is requested or made, the question of the competency of the evidence cannot be raised on appeal.
9. A verdict of a jury may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly exorbitant as to indicate that it was the result of passion prejudice, mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law.
Votava McGroarty & Sklenicka, of Omaha, and Fred P. Komarek, of Hebron, for appellant.
Gross & Welch and Harold W. Kauffman, all of Omaha, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action at law to recover damages for personal injuries sustained by the plaintiff as the result of an automobile collision. The pleadings are of importance in determining this appeal and a summary thereof is deemed necessary.
Plaintiff's petition filed January 2, 1947, alleged that she is a resident of Kansas; that the defendant W. A. Hawks is a resident of Bruning, Thayer County, Nebraska, and that the defendant Harry N. Spencer is a resident of Douglas County, Nebraska. The petition further alleged that on November 17, 1946, the plaintiff was riding as a passenger in the front seat of an automobile owned and operated by her husband, proceeding generally southward on U. S. Highway No. 6; that the truck of the defendant W. A. Hawks traveling northward on the highway struck the car of the defendant Spencer, also traveling northward, and threw the Spencer car into the path of the car in which the plaintiff was riding, injuring the plaintiff. The petition charges negligence and concurrent negligence of the defendants as follows: That the defendant Spencer passed the defendant Hawks immediately prior to the collision and in so doing failed to keep a proper lookout for traffic coming in the opposite direction, and particularly for the car in which the plaintiff was riding; in failing to have his car under proper control; in driving at a high and excessive rate of speed, at a speed that was greater than was reasonable and proper under conditions of traffic on the highway; in failing to give a warning or signal of intention to change his course and to pass the truck; that the defendant Hawks was operating his truck at the time of the collision at a high, careless, and negligent rate of speed, at a speed that was greater than was reasonable and proper under the conditions of traffic on the highway; in failing to have his truck under proper control; in failing to keep a proper lookout for the car in which the plaintiff was riding and the Spencer car; and in failing to apply his brakes and to avoid driving into and against the Spencer car and knocking it across the highway.
On February 21, 1947, the defendant Hawks filed a motion to make the plaintiff's petition more definite and certain. On the 5th of March 1947, the court sustained the motion in part and overruled it in part; on application of the plaintiff, granted leave to the plaintiff to amend the petition instanter by interlineation, and granted the defendant Hawks ten days in which to answer.
On March 14, 1947, the defendant Hawks filed his answer which admitted that there was a collision; denied generally the allegations of the plaintiff's petition; alleged that he was driving his truck in a careful manner and was not guilty of any negligence whatsoever; that the collision and any damage sustained by the plaintiff was caused wholly by the joint and concurring negligence of the plaintiff and her husband, and the defendant Spencer; that the plaintiff's negligence was, as a matter of law, more than slight; and prayed for a dismissal of the plaintiff's petition.
On March 25, 1947, the defendant Harry N. Spencer filed an answer which admitted certain allegations of the plaintiff's petition and that a collision occurred; denied generally other allegations of the plaintiff's petition not admitted; alleged that he was driving his car in a careful and prudent manner and at a moderate rate of speed; that he was not guilty of any negligence whatsoever which caused or contributed to the collision; that the collision and any damage sustained by the plaintiff were wholly and exclusively by joint and concurring negligence on the part of the plaintiff and her husband, and the defendant W. A. Hawks; that the negligence of each of said parties was, as a matter of law, more than slight; and prayed that the action be dismissed as to him.
Thereafter the defendant Hawks took the depositions of the plaintiff and her husband, and on April 24, 1947, 26 days after taking said depositions and more than six months before trial, filed an amended answer by leave of court, repeating the substance of the original answer and in addition thereto alleged that the court had no jurisdiction of this answering defendant; that this defendant was a resident of, and was served with summons in this action in, Thayer County, Nebraska; that the collision pleaded in plaintiff's petition occurred in Sarpy County, Nebraska; that the defendant Spencer was a resident of Douglas County, Nebraska; and that there was no joint liability of this defendant and the defendant Spencer.
At the close of all of the evidence the defendant Spencer moved for a directed verdict on the ground that the evidence was insufficient to establish any of the allegations of negligence in the plaintiff's petition as against him. The defendant Hawks moved for a directed verdict on the ground that the plaintiff failed to adduce sufficient competent evidence to establish a cause of action against him, and for the further reason that the plaintiff had failed to produce evidence to show any joint liability of the defendants Hawks and Spencer. The case was submitted to a jury resulting in a dismissal as to the defendant Spencer and a verdict in favor of the plaintiff as against the defendant Hawks. Separate motions for new trial and for judgment notwithstanding the verdict were filed by the defendant Hawks, both of which motions were overruled. The defendant Hawks perfected his appeal to this court.
For convenience the appellant will be referred to as originally designated in the trial court as defendant, and the appellee as originally designated therein as plaintiff. The defendant Spencer, having been dismissed of any liability by the jury, will be hereafter referred to as Spencer, and his car either the Spencer car or the Ford.
The defendant contends that the trial court erred in failing to sustain the aforesaid motions made in his behalf to dismiss the action as to him, for the reason that the plaintiff's petition alleged joint and concurring negligence on the part of the defendant Spencer and the defendant, however, when plaintiff's deposition was taken it became apparent that the defendant Spencer was merely aiding the plaintiff, and the action was against this defendant only. Error in this respect is urged for the further reason that the plaintiff failed to offer or prove evidence on the allegations of her petition heretofore set out wherein the defendant Spencer was charged with negligence in passing this defendant's truck immediately prior to the collision, and gave her driver no warning or signal of his intention to change his course; that by such allegations of the petition there was no point in the defendant questioning the jurisdiction if he agreed to the facts as pleaded by the plaintiff, and the same constituted his version as to how the collision occurred; and that the situation in the instant case is one where lack of jurisdiction does not appear on the face of the record. Defendant relies on Peters v. Pothast, 120 Neb. 208, 231 N.W 805, and cases cited therein as...
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