2 N.W.2d 599 | Neb. | 1942
Lead Opinion
The defendant Martell State Bank moved for a judgment in its favor on the mandate' issued by this court on a former appeal. The plaintiff brings the case to this court for review, alleging that the judgment against him was erroneously entered.
The record shows that plaintiff commenced an action against the Martell State Bank, William H. H. Moore and J. Carl Sittler to recover damages for the breach of a bailment contract. It was alleged in the petition that plaintiff rented a safety deposit box from the Martell State Bank several years prior to November 2, 1938, that he placed $14,000 in currency therein for safe-keeping, and when he called to get the money on November 2, 1938, it was not in the safety deposit box. A more detailed statement of the facts will be found in the former opinions. Bohmont v. Moore, 138 Neb. 784, 295 N. W. 419, and Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559. The mandate of the supreme court issued on the former appeal stated “that the judgment rendered by you be reversed * * * and the cause remanded for further proceedings.” It is the effect of this remand, when considered ig connection with the opinions of the supreme court accompanying it, that gives rise to the question herein to be determined.
In the original petition filed in the district court, it was alleged that the bailment agreement was made with the Martell State Bank and that the only persons who handled any transactions pertaining to the safety deposit box were the defendants Moore and Sittler. The trial court directed a verdict in favor of Moore and Sittler. The judgment en
On rehearing, the attention of the court was called to the fact that the action - sounded in contract and not in tort. In the second opinion, Bohmont v. Moore, 138 Neb. 907, 297 N. W. 559; this court said: “The plaintiff’s petition sounds in contract and further contains a direct allegation of negligence, thus presenting two aspects oí recovery. Suffice it to say that the rules of law set forth in the opinion are- applicable to the plaintiff’s cause of action, based on a breach of the bailment agreement.” The petition contains the following allegation: “That by reason of the failure of the defendants to return said money to the plaintiff and by reason of their negligence in not properly protecting and caring for said money owned by the plaintiff as aforesaid, the plaintiff has been damaged in the sum of $14,000.” There can be no doubt that this was a general allegation of negligence. The fact that defendants Moore and Sittler were joined as parties defendant is additional proof that plaintiff considered that negligence was an essential element to a recovery, for if the action was one in contract they would have no personal liability. But, in any event, this court in its second opinion concluded that the rules as to negligence were applicable. We do not have the transcript of the evidence in that case before us and for that reason we cannot determine upon what theory the case was tried in the district court. For aught we can say, the parties tried it on the theory that the loss was due to the negligence of the
In Kuhns v. Live Stock Nat. Bank, 138 Neb. 797, 295 N. W. 818, this court said: “So, too, all matters decided expressly or by necessary implication by this court in its opinion in reversing the first judgment became the law of the case. This applies not merely to all questions actually and formally presented,- but to all existing in the record and necessarily involved in the decision. Such points will not be reconsidered in this appeal.”
And in Anheuser-Busch Brewing Ass’n v. Hier, 61 Neb. 582, 85 N. W. 832, this court said: “The decision of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, for the purposes of the litigation, settles conclusively the points adjudicated.”
And, also, in Blum v. Truelsen, 139 Neb. 282, 297 N. W. 136, this court held:
“The plaintiff in this appeal raises the same propositions that were considered in the motion for rehearing, in attacking that part of the judgment releasing Henry T. Truelsen from liability on the note. This court determined the issue so raised when the motion for rehearing was denied.
“Tt is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted* or judicially determined, are conclusively settled by a judgment rendered therein, and*95 that such facts or questions become res judicata and may not again be litigated in a subsequent action.’ 30 Am. Jur. 920, sec. 178. In the instant appeal the subject-matter has been fully determined in the opinion in Blum v. Truelsen, supra, and by the motion for rehearing therein, and cannot be again litigated.”
An examination of the record in this case reveals that every point raised by the plaintiff was determined against him on the former appeal. The holding that the final judgment in favor of Moore and Sittler was a bar to a recovery against the bank was attacked in the motion for a rehearing and this court in its opinion overruling the motion for a rehearing adhered to its former decision. The issue consequently has been finally decided and becomes the law of the case.
Plaintiff argues that the court determined that instruction No. 4 was erroneously given and that, unless a new trial had been intended, there would have been no occasion to consider the correctness of any of the instructions. We quite agree that under our present view of the case there was no necessity to pass upon the correctness of instruction No. 4 and that it is some evidence that a new trial before a jury, correctly instructed, was intended. But another well-settled rule does away with any such conclusion in the present case. Our former decision holds that the final judgments in favor of Moore and Sittler are a bar. to a recovery against the bank. This being true, another trial could accomplish nothing. The judgments would be a bar in any event and require a judgment in favor of the bank. In other words, the judgment entered in favor of the bank was the only one that could be rendered under the present state of the record.
In Bliss v. Live Stock Nat. Bank, 124 Neb. 880, 248 N. W. 645, this court said: “Without question it is a general rule that reversal of a judgment and remand for further proceedings in accord with the opinion, without specific direction to the trial court as to what it shall do, except such as conveyed by the words, .‘for further proceedings,’ is a general remand, and the parties stand in the same position as if
In Kuhns v. Live Stock Nat. Bank, supra, this court said: “In this connection the decision of this court in the instant case on the first appeal necessarily included the determination that the cause of action alleged in the trustee’s petition, both as to fact and law, was clearly sustained by the record and that such trustee was therefore entitled to a judgment as prayed. This became the law of the case, and was properly, as such, interpreted by the trial court on the entry of its judgment ‘upon the mandate’ here appealed from. As an additional reason, it may be said that a case will not. be reversed for errors, where the complaining party would not be entitled to succeed in any event.” See, also, Regouby v. Dawson County Irrigation Co., 128 Neb. 531, 259 N. W. 365.
Plaintiff further contends that, if a new trial was not intended, this court would have reversed and dismissed the action as to the bank. While this is usually true, there are some recognized exceptions to the rule, one of them being that, if the undisputed and admitted facts are such that but one judgment can be rendered, the trial court should enter such a judgment. A case will not be reversed where the complaining party would not be entitled to a judgment in any event.
The trial court evidently came to ’this same conclusion. The judgment of the district court being the only one that could properly be entered, it is affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I agree with the majority that this is an action “to recover damages for the breach of a bailment contract.” I agree that plaintiff alleged that the defendant bank and its officers were negligent in not properly caring for and protecting the money which plaintiff alleges he placed
Negligence therefore was an element in the “action to recover damages for the breach of a bailment contract.” That the plaintiff so recognized it and that it was so treated in the
But even if this view is erroneous, then the following rules seem applicable. “Where a complaint states a cause of action in contract and it appears that this is the gravamen of the complaint, the nature of the action as ex contractu is not affected or changed by the fact that there are also allegations in regard to tortious conduct on the part of defendant, such as allegations in regard to negligence, or fraud, or conversion, which in such cases may be disregarded as surplusage.” 1 C. J. S. 1101, sec. 46. “An action for the negligent performance of a contract not involving a breach of duty imposed by law sounds in contract, and, if the complaint clearly sounds in contract, the fact that negligence is also alleged will not affect or change the character of the action.” 1 C. J. S. 1107, sec. 49.
The majority opinion states: “We do not have the transcript of the evidence in that case (the first appeal) before us and for that reason we cannot determine upon what theory the case was tried in the district court.” As I see it, it is not necessary to have the bill of exceptions in the first case to determine the “theory” upon which plaintiff tried his case. That theory is stated in the above quotation from the opinion. However, we have the right to order the bill of exceptions returned to us. Section 20-1924, Comp. St. 1929, provides: “In the event a rehearing of any such cause or proceeding shall be allowed by the supreme court, or if for any other reason said court shall need or desire the use of
It is true that the opinion in the first case considered the question of negligence. It is obvious, however, that throughout that discussion and in the authorities cited negligence was considered as an element of a contract action and as it affected the rights of a bailor, duties of a bailee, and the burden of proof.
The difficulty we are now facing arose not because of allegations and proof of negligence, but because the plaintiff included the officers of the bailee bank as defendants, both in his designations of parties and in some of his allegations. The trial court in the first action recognized that they were not proper parties and dismissed them, and the action proceeded as one against the defendant bank “for damages for breach of a bailment contract.”
This court in the first opinion on its oiun motion raised this question of the joinder of the officers of the bank. It then stated a rule applicable to a corporation committing a tort, and stated that the bank was “a tort-feasor, together with” its officers. This, is the first appearance in the case of the contention that this is a tort action as distinguished from a contract action. In syllabus point 7 a rule applicable to a banking corporation “sued for tort” is stated, as are similar rules stated in the opinion. It is to be noted, however, that this court did not make an adjudication of that matter and did not dismiss the case and did remand the case generally “for the reasons given” in the opinion.
What was the reason that required a remand ? — the error which existed in instruction 4 which was discussed at length in the opinion. Had this court determined that a judgment for the defendant either here or below should be entered, then such an order here or a remand, with instructions to enter such an order, would have been the proper action. That adjudication was not made.
It is not shown that rules of law applicable to an action for the breach of a bailment contract require the dismissal of the cause of action against the bailee because employees of the bailee, unnecessary parties, are dismissed. Even the defendant in its brief does not contend that those
“If an action is dismissed as to one joint defendant, and judgment is rendered against the other without amendment of the complaint, there is a variance, to take advantage of which on appeal the defendant must specifically point out the objection in the trial court, and give the plaintiff an opportunity to amend.
“The rule that in a joint action ex contractu a dismissal as to one joint defendant effects a discontinuance of the entire action so as to render a judgment against the remaining defendant or defehdants erroneous is sub*102 ject to the exception that it does not apply when the defendant against whom the dismissal was had was not a necessary or proper party.” (72 Am. St. Rep. 196.)
What then, in justice to the parties, should be done in this situation?
The majority dismiss all that part of the first opinion leading up to and holding that instruction No. 4 was erroneous and the contention that a new trial was intended by the decision on that feature of the case, with the statement that there “was no necessity to pass upon the correctness of instruction No. 4.” The majority hold that “the final judgments in favor of Moore and Sittler are a bar to a recovery against the bank,” and that having been decided, it becomes the “law of the case” and that a judgment for the bank must be entered. I cannot agree that such a judgment was entered, but, if entered, then it was clearly erroneous.
The majority, having started out with the proposition that this is an action “for the breach of a bailment contract,” wind up by affirming a judgment for the defendant as having been “sued for tort.”
What then is the rule where a previous decision is announced containing- an admittedly inapplicable statement of law and the case is remanded generally and comes to us on a second appeal? This proposition was squarely before this court in City of Hastings v. Foxworthy, 45 Neb. 676, 63 N. W. 955, wherein the second paragraph of the syllabus is as follows: “An appellate court, on a second appeal of a case, will not ordinarily reexamine questions of law presented by the. first appeal, but where the case was on the first appeal remanded generally for a new trial and the same questions are presented on the second trial, the appellate court. is not bound to follow opinions on questions of law presented on the first appeal and may reexamine and reverse its rulings on such questions, and should do so when the opinion first expressed is manifestly incorrect.”
In the body of the opinion it is stated: “It needs but a
The opinion next commented on the fact that appellate courts have the right to overrule their own decisions in different cases, which, the writer stated, amounted to an admission that in the previous case they had done an injustice which they could not remedy. He then said: “If the doctrine contended for is to prevail here, then it follows that the only instance in which the court is not permitted to correct its mistakes, or refuses to do so, is also the only instance where the mistake can be corrected without injustice. * * * To hold that it is bound to follow in a given case an erroneous decision formerly rendered in the same case would be to hold that, although the court believes the law to be otherwise, it will make a special law for the particular parties and the particular case before it, contrary to the general law — to substitute what it is pleased to call ‘the law of.the case’ for the law of the land, for the law which every member of the court is sworn to administer. * * * We think that ordinarily the court is justified in refusing to reexamine questions of law once passed upon, and that it is only where it clearly appears'that the former decision was erroneous that this should be done. It is, however, now clearly established that the former opinions in this case were erroneous and the court should correct the error.”
To correct this error it is not necessary to disturb the first opinion in its analysis of the cause of action as a contract action, in its statement of the contention of the parties, nor in its discussion and determination that instruction No. 4 was erroneous. It is necessary only to hold that, when the opinion and the supplemental opinion are properly construed and interpreted, they announce the conclusion that the judgment is reversed and the cause remanded for the error in instruction No. 4,' and while not expressly stated in the supplemental opinion, that part of the original opinion which stated that the defendants were tort-feasors and which dealt with the liability of “a banking corporation when sued for tort” was of necessity set aside and withdrawn when the decision was clarified and a recognition given to the fact that plaintiff’s action was based on a breach of a bailment agreement.
This court in the second appeal of Cerny v. Paxton & Gallagher Co., 88 Neb. 88, 119 N. W. 14, held that, “Where the error preceded the verdict, and the verdict is a general one, there must be a new trial upon all the issues of fact.” As to the Cerny case, the defendant says: “If the only matter contained in the opinion in this case would have been the error of the trial court in giving instruction No. 4, and the reversal was solely because of that error, then the case of Cerny v. Paxton & Gallagher would be
So here in- the first appeal the judgment was reversed and the cause remanded because of the prejudicial error in instruction. No. 4. The cause should “necessarily be tried again” unless the parties or the court by proper procedure dispose of it otherwise. In the instant case in the first ap- • peal the judgment Yas reversed and remanded. The mandate placed it again on the docket for trial or for such other proceedings as may properly be taken in a case having that status.
The judgment of the trial court should be reversed and the cause remanded.