Sleezer v. Lang

• Decision Date: 08 April 1960
• Docket Number: No. 34697,34697
• Citation: 170 Neb. 239,102 N.W.2d 435
• Parties: Lloyd W. SLEEZER, Appellee, v. Alice M. LANG, Special Administratrix of the Estate of Carl Lang, deceased, Appellant. Impleaded with Bi-State Distributing Corporation, a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 435

102 N.W.2d 435

170 Neb. 239

Lloyd W. SLEEZER, Appellee, v. Alice M. LANG, Special Administratrix of the Estate of Carl Lang, deceased, Appellant Impleaded with Bi-State Distributing Corporation, a Corporation, Appellee.

No. 34697.

Supreme Court of Nebraska.

April 8, 1960.

Syllabus by the Court

1. The purpose of a new trial is to enable the trial court to correct errors that have occurred in the conduct of the trial.

2. A new trial may be granted only for legal cause or reason and where it appears that a legal right has been invaded or denied. If legal cause or reason exists and the complaining party makes his application in writing within the time fixed by statute, the trial court has no discretion, and motion for new trial must be sustained. Otherwise it must be overruled.

3. A private carrier is one that is not bound to carry for any reason unless the obligation to do so is voluntarily assumed by virtue of a special contract, and such carrier is liable only for such loss or injury as results from a failure to exercise ordinary care.

4. A judgment will not be reversed for error in overruling a motion for a directed verdict at the close of plaintiff's case when certain essential testimony was not then in the record, when, at the time of renewing the motion at the close of all the evidence, such testimony is in the record and its admission is not assigned as error here.

5. It is within the discretion of the court to permit a defendant, during the course of the trial, to amend his answer so as to present a new defense. In such case, the plaintiff, if not prepared to meet the new issue, may have a continuance of the cause, upon such terms as the court may deem just.

6. Except where jurisdiction is involved, this court will consider on appeal only questions which have been presented to and passed upon by the trial court.

7. If plaintiff's petition is prepared, signed, and verified by his attorney, and by mistake an erroneous statement is included therein, the court should before judgment, upon terms just and equitable to all parties, permit the litigant to withdraw that allegation.

8. A party may at any time invoke the language of the pleading of his adversary on which the case is tried on a particular issue as rendering certain facts indisputable; and in so doing he is neither required nor permitted to offer the pleading in evidence. An admission made in a pleading on which the trial is had is more than an ordinary admission. It is a judicial admission and constitutes a waiver of all controversy so far as the adverse party desires to take advantage of it, and is therefore a limitation of the issues.

9. A pleading which has been superseded by an amended pleading is only evidence of the facts therein alleged, and must be introduced as any other evidence in order to be considered. The rule that a party may at any and all times invoke the language of his opponent's pleading as rendering facts therein alleged indisputable applies only to statements in the pleadings upon which the case is tried.

10. It is within the discretion of the trial court to permit or refuse an amendment of a pleading during the trial of a case, and error cannot be predicated on the action of the court in reference thereto unless an abuse of discretion is established to the prejudice of the party who is adversely affected thereby.

11. A violation of the provision of a federal statute, or any rule or regulation promulgated thereunder, regulating the use and operation of airplanes in flight which are intended to safeguard travelers therein is not negligence per se, but evidence of negligence which may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.

12. Impeaching evidence is that which is directed to the question of the credibility of the witness.

Gross, Welch, Vinardi & Kauffman, Omaha, for appellant.

James J. Fitzgerald, Omaha, for Sleezer.

Robert E. O'Connor, Omaha, for Bi-State Distributing Corp.

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

WENKE, Justice.

This is an appeal from the district court for Douglas County. It involves an action brought by Lloyd W. Sleezer against Carl Lang, doing business as Lang Flying Service, to recover damages for personal injuries suffered in an airplane accident which accident, plaintiff alleges, was caused by acts of negligence on the part of Lang and of the pilot thereof, who was an employee of Lang, while the latter was operating it in flight with plaintiff as a passenger therein.

Bi-State Distributing Corporation, plaintiff's employer, was also made a party defendant because of certain subrogation rights it would have in and to any recovery made by plaintiff by reason of payments it had and would make to and for plaintiff under any by reason of the Nebraska workmen's compensation statutes. Its rights are not material to any issue raised by this appeal and therefore they will not be discussed.

Trial was had to a jury and on December 3, 1954, a verdict was returned by it for defendant Carl Lang. Judgment was entered thereon. Thereafter, on December 10, 1954, plaintiff filed a motion for an order vacating the verdict and judgment entered thereon, and for new trial. This motion was not ruled on by the trial court until June 17, 1959, some 4 years, 6 months, and 7 days after it had been filed, when it was sustained. Thereafter, on July 10, 1959, it was suggested to the trial court that defendant Carl Lang had died on June 26, 1959. On July 13, 1959, the action was revived in the name of Alice M. Lang as special administratrix of the estate of Carl Lang, deceased, she being substituted as defendant in his place. On July 14, 1959, the special administratrix took this appeal from the order granting plaintiff a new trial. The appeal from such an order is authorized by section 25-1315.03, R.R.S.1943.

'The purpose of a new trial is to enable the court to correct errors that have occurred in the conduct of the trial.' Olson v. Shellington, 162 Neb. 325, 75 N.W.2d 709, 710. See, also, Pongruber v. Patrick, 157 Neb. 799, 61 N.W.2d 578; Owen v. Moore, 166 Neb. 226, 88 N.W.2d 759.

The trial court gave no reason for its granting a new trial. In view thereof, the following applies: 'If the trial court gave no reasons for its decision is sustaining the motion for new trial, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.' Maska v. Stoll, 163 Neb. 857, 81 N.W.2d 571, 572. See, also, Hert v. City Beverage Co., Inc., 167 Neb. 557, 94 N.W.2d 27; Gain v. Drennen, 160 Neb. 263, 69 N.W.2d 916; Sautter v. Poss, 155 Neb. 62, 50 N.W.2d 547, 549. As stated in Sautter v. Poss, supra: 'There is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.' This the parties have endeavored to do.

In respect to the granting or denying of a motion for a new trial we said in In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526, 531: 'The district court has the power and is required to consider and determine motions for new trial by the exercise of its judicial discretion, which means the application of statutes and legal principles to the whole record then before it. A new trial may be granted only for legal cause or reason and where it appears that a legal right has been invaded or denied. If legal cause or reason exists and the complaining party makes his application in writing within the time fixed by statute, the trial court has no discretion, and motion for new trial must be sustained. Otherwise it must be overruled, because where a party has sustained the burden and expense of a trial and has succeeded in securing the verdict of a jury on the facts in issue, he has a right to keep the benefit of that verdict and judgment thereon unless there is prejudicial error in the proceedings by which it was secured.' See, also, Owen v. Moore, supra; Burhoop v. Brackhan, 164 Neb. 382, 82 N.W.2d 557; Anderson v. Nielsen, 162 Neb. 110, 75 N.W.2d 372; Dixon v. Coffey, 161 Neb. 487, 73 N.W.2d 660.

Appellee Lloyd W. Sleezer, plaintiff below, was at all times herein material general manager of Bi-State Distributing Corporation of which Harry Sidles was then president. Bi-State Distributing Corporation, to which we shall hereinafter refer as Bi-State, was then engaged in distributing appliances, including Bendix. Bi-State had been invited to send representatives to a national sales meeting of Bendix to be held at South Bend, Indiana, on Thursday, September 18, 1952. Sidles called Carl Lang, to whom we shall hereinafter refer as either Lang or defendant, to charter a plane for the trip and did so a few days before September 17, 1952, arranging with Lang to leave on the afternoon of Wednesday, September 17, 1952, and return sometime during the day of Thursday, September 18, 1952. Lang was licensed to operate a private airplane taxi service and chartered planes for that purpose. He was not operating a regular scheduled plane service. His headquarters were at the Omaha Municipal Airport where he operated under the name of Lang Flying Service. Sidles, appellee, and R. J. Harrison, the latter being the general sales manager of Bi-State, planned to make the trip. They reported to Lang's headquarters at the Omaha Municipal Airport shortly before 3 p. m., on September 17, 1952, ready to take the chartered plane to South Bend. Lang had furnished a single engine...