Tober v. Hampton, No. 35906

CourtSupreme Court of Nebraska
Writing for the CourtHeard before WHITE; BROWER; BOSLAUGH; SMITH
Citation178 Neb. 858,136 N.W.2d 194
PartiesWilliam P. TOBER and Louise Tober, Appellants, v. Wayne HAMPTON and H. D. Rowley, d/b/a Hampton & Rowley, Appellees.
Decision Date02 July 1965
Docket NumberNo. 35906

Page 194

136 N.W.2d 194
178 Neb. 858
William P. TOBER and Louise Tober, Appellants,
v.
Wayne HAMPTON and H. D. Rowley, d/b/a Hampton & Rowley, Appellees.
No. 35906.
Supreme Court of Nebraska.
July 2, 1965.

Page 196

Syllabus by the Court

1. The purpose of a pretrial conference is to simplify the [178 Neb. 859] issues; amend the pleadings, when necessary; and avoid unnecessary proof of facts at the trial.

2. The participants in a pretrial conference must adhere to the spirit of that procedure and are held to have waived questions not there presented.

3. Modification of a pretrial order may be had at the trial to prevent manifest injustice, but the modification should be by direction and not by indirection.

4. The subsequent course of an action is controlled by the agreements made at pretrial conference so long as they remain unmodified and that would be true on appeal.

5. If at a pretrial conference it appears there are issues which might be determinative of the cause although not then within the pleadings, they should be stated in the pretrial order which should thereafter govern the proceeding in that respect.

6. Where the independent tortious acts of two persons combine to produce an injury indivisible in its nature, either tortfeasor may be held for the entire damage, not because he is responsible for the act of the other but because his own act is regarded in law as a cause of the injury.

7. Several actions may be brought and several judgments recovered against several wrongdoers, although but one satisfaction can be had.

8. If one of several joint wrongdoers makes settlement with the injured party and pays him damages which he agrees to receive and does receive as full compensation for all damages sustained, it will release all of the joint wrongdoers.

Page 197

9. The injured party can have only one satisfaction for the injury and if the amount received was not in full satisfaction it is a pro tanto bar to an action against the other wrongdoer.

10. If the settlement is in writing, oral evidence is competent to show the intention of the parties thereto in an action against one not a party to the settlement.

11. The word 'indemnity' as used in connection with law relating to tort-feasors means a shifting of the entire loss, while the word 'contribution' means a sharing of the loss.

12. Indemnity between tor-feasors is generally restricted to cases where actual fault is attributed to one party and the other party is only technically or constructively at fault, and indemnity is never applicable where both parties are actually in the wrong.

[178 Neb. 860] 13. Apart from statute, the general rule is that one of several wrongdoers, who has been compelled to pay the damages for the wrong committed, cannot compel contribution from the others who participated in the commission of the wrong.

14. The use of a legal device, proper in its setting, should not be extended to a situation foreign to its nature for the purpose of thwarting the decisions of the courts.

15. As used in the present case, the loan receipts are being used to thwart the law of Nebraska relating to indemnification and contribution among tort-feasors.

16. Whether plaintiff is the real party in interest ordinarily is a question of law for the court.

McGinley, Lane, Mueler & Shanahan, Ogallala, Sidner, Lee, Gunderson & Svoboda, Fremont, for appellants.

Arthur R. Johnson, Ogallala, Baskins & Baskins, North Platte, for appellees.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

BROWER, Justice.

Plaintiffs William P. Tober and Louise Tober, husband and wife, brought this action in the district court for Keith County, Nebraska, against the defendants, Wayne Hampton and H. D. Rowley, doing business as Hampton & Rowley, to recover damages to real and personal property caused by a gas explosion which occurred Noveber 22, 1960, in a house at 104 East H Street, in Ogallala, Nebraska. The petition alleges defendants' employees, while opeating a ditch digging machine i constructing a sewer line, negligently allowed it to come into forcible contact with a gas line at the front of the premises, damaging it and causing a leak. It further alleged defendants failed to inspect the line thereafter to determine the amount of damage and covered the ditch without making repairs or reporting what had happened to the proper authorities.

[178 Neb. 861] The amended petition consisted of two causes of action, the first being for damages to plaintiffs as owners of the premises, and the second consisting of a claim for damages to personalty of the resident tenants, H.L.Robinette and Sunya Robinette, which had been assigned to plaintiffs.

Following a pretrial conference held March 4, 1964, the trial court made an order which set forth the issues as follows: '1. The ownership of the claims involved in the action. 2. Negligence of the defendants, if any. 3. Contributory negligence, if any. 4. The proximate cause, including the theory by the defendants that the conduct on the part of the gas company was the sole cause. 5. Damages. A. The amount thereof. B. The effect of contracts with the gas company. C. Rental losses.' The order further stated: 'In view of the fact that it appears to the Court that there is a dispute over the effect of the loan agreements between the plaintiff, his assignees and the

Page 198

gas company, involving consideration of certain agreements, depositions and other evidence, IT IS THEREFORE ORDERED that the matter be submitted to the Court without a jury, for an advance decision upon the construction and effect of said agreements upon the issue of the owner to the claim of damages. * * * Trial is set for April 2, 1964, at 10:00 o'clock, A. M., for the disposition of the non-jury issues.' The order stated its provisions should constitute part of the record and would be final unless excepted to by either party within 10 days from March 17, 1964. No exceptions were filed.

On April 2, 1964, the matter came for trial to the court without a jury as ordered. Evidence was taken and the cause argued and submitted. On May 14, 1964, the court decided the matter, finding generally for the defendants and specially: '* * * that the alleged Loan Agreements were in the truth and in fact a settlement by the plaintiffs of their claim and the assigned claim of the Robinettes with the Natural Gas Distributing Company; that [178 Neb. 862] said Loan Agreements were in truth and in fact, in addition to being a settlement, an assignment of the rights of the plaintiffs on their own claim and the claim of the Robinette's to the Natural Gas Distributing Company; that the settlement and assignment of the plaintiffs and the Robinette's as drawn and drafted were placed in the form of a Loan Agreement for the sole purpose of enabling the Natural Gas Distributing Company to avoid its liability to the plaintiffs and Robinette's in whole or in part and to impose full liability for said damages upon the defendants for the benefit of the Natural Gas Distributing Company and the plaintiffs. That said alleged Loan Agreement is a full and complete assignment of all claims of the plaintiffs to the Natural Gas Distributing Company and that the plaintiffs are not the owners of said claims.' The plaintiffs' cause of action was thereupon dismissed.

Plaintiffs' motion for a new trial having been overruled, the case is brought to this court by appeal.

Plaintiffs first contend the trial court erred in ordering a hearing and receiving evidence on issues not set forth in the pleadings. They contend that defendants' answer failed to allege plaintiffs were not the real party in interest or that the plaintiffs and their assignees had settled their actions. This requires us to consider the effect of the pretrial order which set forth those particular issues for determination. It is governed by the rule set out in the 1963 Revised Rules of the Supreme Court at page 35. It provides in part as follows:

'(a) In any civil action in the district court after issues have been joined the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider

'(1) The simplification of issues;

'(2) The necessity or desirability of amendments to the pleadings; * * *

'(5) The advisability of a preliminary reference of [178 Neb. 863] issues to a master for findings to be used as evidence when the trial is to be by jury;

'(6) Such other matters as may aid in the disposition of the action.

'The court shall at the time of the pretrial hearing make a record of the proceedings which recites the action taken at the conference, the amendments allowed to the pleadings, and the amendments made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; that counsel shall forthwith acknowledge their assent thereto, or, in the alternative, state into the record any and all objections they may have thereto; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.'

In Long v. Magnolia Petroleum Co., 166 Neb. 410, 89 N.W.2d 245, this court held: 'The purpose of a pretrial conference is to simplify the issues; amend the pleadings, when necessary; and avoid unnecessary

Page 199

proof of facts at the trial. * * * The participants in a pretrial conference must adhere to the spirit of that procedure and are held to have waived questions not there presented. * * * Modification of a pretrial order may be had at the trial to prevent manifest injustice, but the modification should be by direction and not by indirection. * * * The subsequent course of an action is controlled by the agreements made at pretrial conference so long as they remain unmodified and that would be true on appeal.'

It appears in the cited case the issues were narrowed by...

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18 practice notes
  • Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, No. 3824
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1992
    ...Ry. Co., 211 Kan. 368, 507 P.2d 353, 360 (1973); O'Howell v. Continental Ins. Co., 654 S.W.2d 308 (Mo.App.1983). But see Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 32 Under Alaska's Uniform Contribution Among Tortfeasors Act, the settlement is valid as long as it was entered into in goo......
  • Heidemann v. Rohl, No. 10951
    • United States
    • Supreme Court of South Dakota
    • January 28, 1972
    ...1036; Tankersley v. Lincoln Traction Co., 101 Neb. 578, 163 N.W. 850; Menking v. Larson, 112 Neb. 479, 199 N.W. 823, and Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194. We see no reason why the Nebraska court would not apply the same enlightened rule to a master-servant relationship as the ......
  • American Chain & Cable Co., Inc. v. Brunson, No. 60892
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 1981
    ...receipt permitted as covenant not to sue but sums received applied pro tanto toward reduction of plaintiff's recovery); Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 (1965) (Loan receipt constituted assignment of claim involving property damage); Cullen v. Atchison, Topeka & Santa Fe R. Co......
  • Ianire v. University of Delaware
    • United States
    • Superior Court of Delaware
    • May 29, 1969
    ...Ins. Co., 80 Nev. 137, 390 P.2d 45; King v. Timber Structures, Inc., of Cal., 240 Cal.App.2d 178, 49 Cal.Rptr. 414; Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 (Neb.); Lommori v. Milner Hotels, Inc., 63 N.M. 342, 319 P.2d 949; Kennedy v. Colt, 216 Or. 647, 339 P.2d 450; Gombar v. Schaeff......
  • Request a trial to view additional results
18 cases
  • Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, No. 3824
    • United States
    • Supreme Court of Alaska (US)
    • March 27, 1992
    ...Ry. Co., 211 Kan. 368, 507 P.2d 353, 360 (1973); O'Howell v. Continental Ins. Co., 654 S.W.2d 308 (Mo.App.1983). But see Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 32 Under Alaska's Uniform Contribution Among Tortfeasors Act, the settlement is valid as long as it was entered into in goo......
  • Heidemann v. Rohl, No. 10951
    • United States
    • Supreme Court of South Dakota
    • January 28, 1972
    ...1036; Tankersley v. Lincoln Traction Co., 101 Neb. 578, 163 N.W. 850; Menking v. Larson, 112 Neb. 479, 199 N.W. 823, and Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194. We see no reason why the Nebraska court would not apply the same enlightened rule to a master-servant relationship as the ......
  • American Chain & Cable Co., Inc. v. Brunson, No. 60892
    • United States
    • United States Court of Appeals (Georgia)
    • March 10, 1981
    ...receipt permitted as covenant not to sue but sums received applied pro tanto toward reduction of plaintiff's recovery); Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 (1965) (Loan receipt constituted assignment of claim involving property damage); Cullen v. Atchison, Topeka & Santa Fe R. Co......
  • Ianire v. University of Delaware
    • United States
    • Superior Court of Delaware
    • May 29, 1969
    ...Ins. Co., 80 Nev. 137, 390 P.2d 45; King v. Timber Structures, Inc., of Cal., 240 Cal.App.2d 178, 49 Cal.Rptr. 414; Tober v. Hampton, 178 Neb. 858, 136 N.W.2d 194 (Neb.); Lommori v. Milner Hotels, Inc., 63 N.M. 342, 319 P.2d 949; Kennedy v. Colt, 216 Or. 647, 339 P.2d 450; Gombar v. Schaeff......
  • Request a trial to view additional results

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