Versch v. Tichota, 39405

• Citation: 192 Neb. 251,220 N.W.2d 8
• Decision Date: 05 July 1974
• Docket Number: No. 39405,39405
• Parties: George W. VERSCH, Jr., Appellee, Cross-Appellant, v. James J. TICHOTA et al., Appellees, Impleaded with the City of Omaha, a municipal corporation, Appellant, Cross-Appellee.
• Court: Supreme Court of Nebraska

Page 8

220 N.W.2d 8

192 Neb. 251

George W. VERSCH, Jr., Appellee, Cross-Appellant, v. James J. TICHOTA et al., Appellees, Impleaded with the City of Omaha, a municipal corporation, Appellant, Cross-Appellee.

No. 39405.

Supreme Court of Nebraska.

July 5, 1974.

Syllabus by the Court

1. Under section 48--118, R.R.S.1943, a strict compliance with the provisions requiring notice to the employer is not mandatory and jurisdictional.

2. The purpose of the notice requirements of section 48--118, R.R.S.1943, is to give the employer or other party interested an opportunity to join in the action.

3. Under section 48--118, R.R.S.1943, substantial rather than literal compliance with the notice provisions is sufficient.

4. When a motion for a new trial is seasonably filed and pending, the cause remains in the District Court so long as the motion is undisposed of and there can be no final judgment until its disposition.

5. An order is not final when the substantial rights of the parties involved in the action remain undetermined and when the cause is retained for further action. In such a case, the order is interlocutory.

Herbert M. Fitle, City Atty., James E. Fellows, George S. Selders, Jr., Omaha, for appellant.

Jack L. Spence, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an action for the allowance for attorney's fees in a subrogation case. After settlement of the original claim for damages, and subsequent allocation of the proceeds between the plaintiff-employe Versch, and the defendant-employer City of Omaha (hereinafter referred to as the 'City'), as subrogee, the plaintiff's attorney made application for attorney's fees in the amount of one-third of the fund recovered by the City, $2,250. The trial court approved the application but modified the amount of fees due to one-fifth, $1,350. From this ruling, the City appeals and the plaintiff cross-appeals. We affirm the judgment of the District Court.

In December 1969, the plaintiff Versch filed, a petition for damages against the defendants, Tichota and McCann Concrete Company. The City was joined as an additional party to determine its subrogation rights and it entered a voluntary appearance on the same date. On November 18, 1971, the plaintiff and defendants, Tichota and McCann, settled in the amount of $15,000. The City and the plaintiff were unable to agree as to the distribution of the proceeds. The court ordered distribution to the plaintiff in the amount of $8,250 and to the City in the amount of $6,750. Motions for new trials were then filed by both the plaintiff and the City on November 29, 1971. An attorney's lien was filed and recorded by the plaintiff's attorney on the same date. On April 5, 1972, a joint motion by both the City and the plaintiff to withdraw the motions for a new trial was filed. On the same day, the motion was granted and the judgment of November 18, 1971, was confirmed and the clerk was authorized to make distribution of the fund.

On April 11, 1972, the plaintiff's attorney filed an application for attorney's fees from the fund recovered by the City in the amount of $2,250. It was argued and taken under advisement. On November 28, 1973, the court granted the application but modified the amount of attorney's fees to $1,350. From this judgment, the appeal and cross-appeal have been prosecuted.

The City contends that under section 48--118, R.R.S.1943, the failure of the plaintiff to give notice 30 days prior to making the claim or bringing the suit disallows any reimbursement for attorney's fees from the fund payable to the City. We believe that the interpretation of the statute as found in Gillotte v. Omaha Public Power Dist., 189 Neb. 444, 203 N.W.2d 163 (1973), is controlling. The facts of Gillotte show that prior to the making of the claim, the workmen's compensation carrier of the employer had sufficient prior knowledge of the upcoming suit. The employer was then joined as a subrogated defendant. A year and a half after the filing of the petition and the employer's appearance in the action, the action was tried by the jury. In the instant action, it cannot be determined from the record whether the City had prior notice of the filing of the claim. However, 23 months elapsed from the day that the City voluntarily appeared, the same day the petition was filed by the plaintiff, until the cause came to trial. In Gillotte v. Omaha Public Power Dist., Supra, we stated: 'A reading of the entire statute makes it quite clear that a strict compliance with the written, certified, or registered mail notice provision was not intended to be mandatory and jurisdictional. The basic purpose was to give notice to the other party.' It is stated in the statute that the notice requirement was meant to give the other party the opportunity to join in the action. The purpose was then met when the City was joined in the action and made its Voluntary appearance. There can be no doubt that the City had actual notice of the making of the claim and the bringing and prosecution of the action. Under the provisions of section 48--118, R.R.S.1943, substantial rather than literal compliance is sufficient. Gillotte v. Omaha Public Power Dist., Supra. Furthermore, notice may be waived in writing or may be implied from unequivocal conduct. In this case, the Voluntary appearance by the City at...