3 N.W.2d 439 | Neb. | 1942
This is an action to recover damages for death by wrongful act. Edwin A. Boell, plaintiff, alleged in his petition that his wife, Augusta Boell, was fatally injured June 2, 1940, and died July 4,1940, as the result of an automobile collision caused by the gross negligence of Edward C. Overbaugh, defendant. Plaintiff’s claim consists of the following items: Necessary medical treatment and hospital care of wife, $804; burial expenses, $550.50; lost services, companionship and consortium, $10,000; total, $11,354.50.
In an answer to the petition defendant pleaded that Harold M. Boell, son of plaintiff and administrator of the estate of Augusta Boell, deceased, acting also as the agent of plaintiff with the'latter’s knowledge, acquiescence and consent, procured and executed a settlement for $2,408.50, a sum paid by defendant to the administrator and agent as full, final and complete payment of all damages sustained- by plaintiff and by the estate of his deceased wife as a result of the automobile accident pleaded in the petition and that the settlement was approved by the county court of Lancaster county. The reply to the answer was a general denial.
Upon a trial of the cause the jury rendered a verdict in favor of defendant and from a judgment of dismissal plaintiff appealed.
The determining question on appeal is the sufficiency of the evidence to prove the agency of the son to settle the claim of his father for the items of damages enumerated in the petition.
Counsel reviewed the testimony on the issue of the son’s-agency, quoted law applicable thereto from the standpoint, of plaintiff, and came to the conclusions that the alleged agency of the son was disproved and that there was no evidence to support the verdict in favor of defendant. The position of plaintiff may be stated as follows: Two causes of action arose after the injury of Augusta Boell, June 2, 1940, and her death, July 4, 1940 — one in favor of her husband for loss of her services and companionship and for medical, hospital and burial expenses, and the other in favor of the administrator of her estate for losses thereto under the statute creating a cause of action for death by wrongful act. Comp. St. 1929, secs. 30-809, 30-810, Lord Campbell’s-Act. In this connection it was strenuously argued, as directly stated by both father and son on the witness-stand, that the administrator had no authority to settle the cause of action for personal losses of plaintiff and that the son, as administrator, acted alone for the estate of his deceased mother in settling the cause of action against defendant for causing her death.
The direct testimony of father and son did not necessarily control the decision. Agency may be proved by circumstantial evidence. Martin v. Hutton, 90 Neb. 34, 132 N. W. 727. The trial judge and the jury had before them the entire case, including- the witnesses, their testimony and documentary
In submitting to the jury the issue of the agency of the son to settle his father’s personal claim against defendant, the district court necessarily considered the evidence sufficient to support a verdict in favor of defendant, and the jury so found, notwithstanding direct evidence to the contrary. Juries are often required to determine issues where there is circumstantial evidence on one side and direct testimony of witnesses on the other, even in criminal prosecutions involving the death penalty. The record in the case at bar contains evidence tending to prove the following facts or proper inferences from established facts and circumstances :
Plaintiff was 70 years of age and his son, Harold M. Boell, 36. They resided four or five blocks from each other in Lincoln. July 10, 1940, six days after the death of the wife of plaintiff, he applied to the county court by petition for the appointment of his son Harold as administrator of her estate. The latter was appointed as such August 5, 1940. After negotiating for months with defendant for a. settlement of the liability created by his wrongful act, and after conferring at frequent intervals with the county judge in regard to offers made, the administrator applied to the county court for permission to settle the controversy for $2,408.50. The application described the fatal accident and stated in part:
*268 “It is the contention of the administrator that the accident resulted from the negligence of the said Edward C. Overbaugh, and the said Edward C. Overbaugh denies that he was in any way negligent or contributed to the death of Augusta Boell.
“Your petitioner would further show unto the court that Edward C. Overbaugh has offered to pay as a compromise settlement of said disputed matter the sum of $2,408.50 in full settlement and satisfaction of said disputed claim.”
The administrator assured the county court when the application was under consideration that the settlement was agreeable to the members of the family — the heirs-at-law, including plaintiff. No one said the administrator was settling the claim only as far as he could do so in that capacity. When the settlement was made, the items for expenses of medical care, hospital and burial were taken into consideration. Harold M. Boell, before and after the death of his mother, saw his father “practically every day or every other day.” The county court, after taking evidence and after finding that the settlement was for the best interests of the estate, ordered:
“That said administrator be and he is hereby empowered to execute and give to Edward C. Overbaugh a good and sufficient release; releasing and discharging the said Edward C. Overbaugh of and from any and all claims, demands and controversies of every nature whatsoever existing or to exist as a result of an automobile accident which occurred * * * on the 2d day of June, 1940, resulting in the death of Augusta Boell.”
The administrator on November 14, 1940, signed and acknowledged the settlement authorized by the county court and in it recited:
“I further release and discharge the said Edward C. Overbaugh from any and all claims for medical expense, hospital expense or any other expense incurred by the said Augusta Boell as a result of said automobile accident.”
Plaintiff admitted in effeet on cross-examination that he met and talked to his son frequently from July 4, 1940, until
Affirmed.