Waxham v. Fink
| Decision Date | 26 February 1910 |
| Docket Number | 15,931 |
| Citation | 125 N.W. 145,86 Neb. 180 |
| Parties | MELISSA WAXHAM, APPELLEE, v. ROBERT O. FINK, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed.
REVERSED.
H. C Brome and Clinton Brome, for appellant.
W. F Wappich and Joel W. West, contra.
The plaintiff began this action in the district court for Douglas county to recover damages which she alleges she suffered because of the negligence of the defendant. The plaintiff was employed as a domestic by the defendant. The defendant's family consisted of himself and his son, about 14 years of age, and the plaintiff had general care of the house and performed the ordinary duties of a housekeeper. At the time of the accident which caused the plaintiff's damage, the defendant was away from home, and the boy, in getting some coal from the cellar for the evening, left the small trapdoor in the floor open, through which the plaintiff fell, causing her injuries. There was a verdict for the plaintiff, and the defendant appeals. The brief of the defendant in this court is devoted entirely to the proposition that the plaintiff and the boy were, in the absence of defendant, fellow servants, and that the defendant is not liable for the carelessness of the boy. This proposition is not discussed at all in the brief of the plaintiff. The argument on behalf of plaintiff is addressed entirely to reasons for supposing that the main question insisted upon by defendant cannot be considered by this court, and several reasons are urged for that conclusion.
The question presented by the plaintiff is wholly one of practice, and becomes of more than usual importance because of the change in the method of obtaining a review in this court of judgments and final orders of the district courts in civil actions at law. The act of 1905 (laws 1905, ch. 174) was intended to provide a complete procedure in such cases. It was a radical departure from the procedure then provided, and under that act this court held that "it was the intention of the legislature to simplify the practice in bringing cases to this court", and the former rule, which had been universally enforced, that "an assignment of error directed against a group of instructions is insufficient, and will be considered no further than to ascertain that any one of such instructions was properly given", was abrogated. First Nat. Bank v. Adams, 82 Neb. 801, 118 N.W. 1055.
It will be observed further that under the act of 1905 this court adopted the rule that upon docketing the appeal a printed or type-written brief of the errors relied upon must be filed in this court with the transcript. But the legislature at its next session amended the statute, repealing nine several sections of the compiled statutes then in force, and enacting five sections in their stead. Laws 1907, ch. 162. The title of the new act is: "To provide for appeals to the supreme court in all cases except criminal cases", etc. The manifest purpose of the act is to further simplify the practice, and the result, we are satisfied, is to do away with many of the technical rules which had been supplied by the court. The fourth section of the act amends section 675c of the code. That section was: The section was re-enacted, and to the clause, "but no petition in error or other assignment of errors shall be required", were added the words, "beyond or in addition to the foregoing requirements." We must give force to this amendment, and we can discover no other meaning than that only one brief, and that the printed brief which had always been required, was to be filed in the case, and the assignments of error in that brief were sufficient if they "set out particularly each error asserted and intended to be urged." Each error of the trial court relied upon must be assigned in the brief and must be set out with particularity. The party complaining of the judgment will not be supposed to have any reason to ask for a reversal except the errors committed by the trial court which he specifies in his brief and so defines that this court may know from his brief the particular ruling of which he complains. If this is done, nothing further is required to obtain a review of the rulings so specified.
The brief of appellant in this case contained but one assignment of error. It is in these words: "The court erred in overruling the motion of the defendant made at the close of the evidence that the jury be directed to return a verdict for defendant." Under the statutes now in force and the rules of this court framed in compliance with the amendments above discussed, this assignment presents the only question for us to review. Under the former practice it was held, perhaps not necessarily, that the petition in error in this court must contain the assignment that "the court erred in overruling the motion for a new trial." The rule so established appears to be inconsistent with the simplified practice introduced by the recent legislation above referred to. At the close of the evidence the defendant asked the court to direct a verdict in his favor. This the court refused to do, and the defendant excepted to the ruling. This is the specific error of the district court which is "asserted and intended to be urged for reversal", and it is "set out particularly" in the brief filed in this court. This is an exact compliance with the statute as to the assignment of errors in this court.
The amendments of the statutes under consideration have nothing to do with the practice in the district courts, and of course the well-settled rules of those courts are in no way affected thereby. The motion for new trial filed in the district court is unaffected by these amendments. It must give the trial court an opportunity to correct all errors complained of, and no alleged error can be considered as ground for reversal that is not so brought to the attention of the trial court.
It is contended by the plaintiff that the defendant's motion for new trial was insufficient to challenge the attention of the trial court to the error now relied upon. The motion for new trial contained the following assignments: Then follow seven assignments, each assigning error in giving a specified instruction. Bearing in mind that the defendant's contention is that the whole evidence shows that the plaintiff and the son of defendant are fellow servants, and that upon this evidence the law is that the plaintiff cannot recover, it would seem that either the first or second assignment in the motion for new trial must bring the real matter in controversy to the attention of the court. Houston v. City of Omaha, 44 Neb. 63, 62 N.W. 251. If "the verdict is not sustained by sufficient evidence", the court erred in not sustaining the defendant's motion to so instruct the jury.
In Albright v. Peters, 58 Neb. 534, 78 N.W. 1063, the court said: The opinion does not set out the assignments in the motion for a new trial, but it...
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