Waxham v. Fink, No. 15,931.

• Court: Supreme Court of Nebraska
• Writing for the Court: SEDGWICK
• Citation: 125 N.W. 145,86 Neb. 180
• Parties: WAXHAM v. FINK.
• Docket Number: No. 15,931.
• Decision Date: 26 February 1910

86 Neb. 180
125 N.W. 145

WAXHAM
v.
FINK.

No. 15,931.

Supreme Court of Nebraska.

Feb. 26, 1910.

Syllabus by the Court.

[125 N.W. 145]

The purpose of Acts 1907, c. 162, was to further simplify the practice in taking appeals to this court in civil actions at law. No assignment of errors in this court is necessary except in the printed brief; and ordinarily the court will not reverse the judgment of the district court for errors not so assigned. Plain errors not so assigned, especially if they involve jurisdictional questions, may, under some circumstances, be considered. Each error complained of must be assigned separately and “particularly.”

The assignment in this court that “the court erred in overruling the motion for a new trial,” and similar technical assignments, are no longer required. If the particular ruling of the trial court which is complained of is separately assigned in the brief and plainly and definitely stated, the statute is complied with. This court, however, will not ordinarily discuss in the opinion assignments that are not argued in the brief and supported by authorities.

When at the close of the evidence the defendant moves the court to instruct the jury to find a verdict in his favor, and the motion is overruled and an exception duly taken, the assignment in the brief that “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” is sufficient.

The practice in the district court is unaffected by this statute. The motion for new

[125 N.W. 146]

trial must give the trial court an opportunity to correct all errors complained of. No alleged error can be considered in this court as ground for reversal unless so brought to the attention of the trial court.

The assignment of error in the motion for new trial that “the verdict is not sustained by sufficient evidence” or “the verdict is contrary to law” is sufficient to challenge the attention of the trial court to its ruling in refusing to direct a verdict for defendant, since there should be an instruction to find for defendant if the evidence is not sufficient to sustain a verdict for plaintiff, and the same question is raised by either suggestion.

It is not necessary that the assignment in this court should be in precisely the same language used in the motion for new trial in the district court. If the ruling is identified and plainly defined, it is sufficient.

The suggestion in a motion to instruct the jury to find a verdict for defendant that “the facts proven are not sufficient to entitle the plaintiff as matter of law to recover” is equivalent to assigning that the evidence is insufficient to justify a verdict for plaintiff.

If two servants of the same employer are associated together in the same service, and neither is in any manner under the control or direction of the other, they are fellow servants, and one of them cannot recover damages from the employer caused solely by the negligence of his fellow servant.

A woman of mature age was employed as housekeeper and in general charge of the housework, and was injured by an accident caused by the negligence of the son of her employer, a boy of 14 years, who was also performing ordinary household service in the absence of his father, but pursuant to the general directions of his father to perform such service. Held, that the woman and the boy were fellow servants, and that she could not recover from her employer damages so sustained.

Appeal from District Court, Douglas County; Troup, Judge.

Action by Malissa Waxham against Robert O. Fink. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. C. Brome and Chas. L. Brome, for appellant.

W. F. Wappich and Joel W. West, for appellee.

SEDGWICK, J.

The plaintiff began this action in the district court of 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, c. 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 National 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 typewritten 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, c. 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

[125 N.W. 147]

section 7265c of the Compiled Statutes of 1905. That section was: “The Supreme Court shall by general rule provide for the filing of briefs in all...