*1 186 of the the best interests
court be for would change.” child make such juvenile proceeding in a court It is clear that neglected dependent chil- children declare jurisdiction of the court terminate dren when the ap- parental rights properly invoked and has been ju- propriate had, the has been service summons parental rights of the court terminate risdiction continues until the matter finally determined. juris- that the in this The record case establishes properly invoked, to de- both diction the court was dependent neglected or children clare children rights appellant. parental of the to terminate the properly given there notice Summons and were adequate hearing. appellant notice of each proceed- represented throughout was ings question appellant no ade- and there is had hearings. quate notice Perkins and full and fair See Perkins, 231 N. 2d 133. 194 Neb. W. beyond ques- in this The evidence case establishes require tion that the best interests the children parental rights appellant be termi- Separate judgment The orders nated. County Douglas in all re- Court Juvenile spects proper affirmed.
Affirmed. Special Mary Caradori, J. Administratrix Caradori, deceased, appellant. appellee, Estate Fitch, v. Jimmie F.
263 N. W. 2d Filed 41267. March 1978. No.
Eugene Gross, Welch, Vinardi, P. Welch of Kauff- Day, appellant. man & for
Raymond appellee. Walowski, J. for Heard before Spencer, J., Boslaugh, White, C. JJ.
McCown, Clinton, Brodkey, White, and C. J. White, Thomas, brought this action in
Plaintiff-administratrix damages wrongful for District Court Amy death judge age Caradori, The submitted 11. trial allegations on the defendant’s case allegations negligence of the decedent’s on contributory negligence. plaintiff a ver- The returned appeals. $40,000. Defendant dict for (1) giving assigns The as error: The defendant (2) give instructions; certain refusal grant af- on motion mistrial defendant’s refusal into admitted of the defendant were ter admissions remarks evidence and after according argument which, in final were made jury’s liability injected defendant, into the insurance (3) of the ver- deliberations; the excessiveness dict. riding bicy- companion
The decedent and Douglas County, on near Q cles Street Millard April p.m. Nebraska, at on 1975. about unlighted. bicycle The decedent’s area was equipped pedals tape on a re- with reflector *3 riding girls flector the rear behind seat. The side-by-side partially on on the the shoulder road pickup according witness, when, to a the defendant’s body, passed decedent, struck truck and the over her passen- witness, left scene. The was a who ger following vehicle, in a decedent saw the lights fol- The witness defendant’s vehicle. pickup farmstead, lowed the defendant’s area delay, persuaded him, and, confronted after some to the defendant return scene accident. jury ample was from which the There evidence negligent have could determined defendant was regard speed, proper lookout, control. riding bicycle alongside The decedent her (2), bicycle companion’s in violation of section 39-690 companion’s bicycle 1943, R. R. S. was not light equipped required with the and reflector as (5), 39-6,138 section dence from R. S. evi- R. 1943. There was jury have which the could concluded contributorily negligent. that the decedent was objects to The first instruction defendant which
189 to the the standard of care of a child. detailed minor held to the ex- The instruction recited that a is ordinarily degree ercise of care which an prudent capacity appreciate child of the same danger con- avoid would use. The instruction was Auguy, See, 164 sistent with Nebraska law. Bear v. 756, 559; Armer & C. B. Neb. 83 N. W. v. Omaha Ry. Co., St. 151 37 N. 2d 607. Neb. W. urges riding bicycle on defendant that the a city activity street a minor en- is adult and that
gaging activity in such be held to the adult should Pearson, standard. See Dellwo v. Minn. negli-
N. W. 2d 859. The Dellwo case involved the operation power gent prepared, of a boat. We are not assuming rule, even the wisdom of the Minnesota place activity bicycling category in the same power boating. assignment The defendant’s without merit. complains giving
Defendant further of in- self-preservation struction No. 20: “The instinct of disposition personal may, and the to avoid harm presumption evidence, the absence of raise the person ordinary killed was in the exercise of care. presumption arising “The of due care out of nat- self-preservation instinct of evidence, ural but only mere rule of law and obtains in absence of justifying direct circumstantial evidence reasona- way upon subject, inferences one ble or another produced, presumption disap- and when evidence is pears and cannot be considered.” The defendant urges that since there was evidence from which the negli- could have concluded the decedent was gent, was error instruction háve been *4 given. Davenport,
Sheets v. Neb. 150 N. W. 2d held that present if evidence was introduced to “sufficient jury question, presumption
a does not jury arise and the not should be instructed about it.” It was further held: “The effect of the instruction jury permit the evi- to whether determine
towas outweighed presumption negligence to dence prejudicial regard contrary. error this the requiring We trial.” supra, and a new reversal Davenport, in Sheets The instruction “ presumption of an that a driver ‘There is a reads: used due in an accident was killed automobile who operated operation automobile in the care gives preservation lawfully. of self it The instinct ” presumption.’ to such rise complete more case was a The instruction this exposition instruction than the the law effect, court, told the Sheets case. disregard presumption intro- if evidence was giving of not recommend the we do duced. While exposition instruction, not incorrect it was jury. operate to not mislead the the law and could Any present prejudicial. error was assigns as error the trial
The defendant next requested instruction court’s refusal submit negligence contributory was a defense homicide. prosecution motor vehicle pled introduced that defendant Evidence was guilty to, of, convicted the crime of motor and stood arising from the death of vehicle homicide correctly points Caradori. Defendant out that con- tributory negligence is not decedent a defense charge of motor the criminal vehicle homicide. any authority propo- However, he fails to cite for the where, action, sition that a civil is shown that a and been convicted of a pled guilty defendant had charge, motor vehicle homicide an instruction given informing contributory should be negligence was a defense the criminal action. quite properly allega- The trial forth court set negligence against tions legations the defendant and the al- contributory negligence against the de- cedent. The court instructed that evidence of a vio- negligence lation of a traffic law evidence of *5 only. requested proper instruction in a refusing civil case and the court did err the request. defendant’s assignment error,
To understand the second of necessary will be examine some detail the na- pleadings of ture the and the it- conduct trial response plaintiff’s petition, In self. to the de- the attorney fendant’s first filed an answer which he place denied that an accident had taken and that the Amy vehicle of his client had struck O. Caradori. Subsequent thereto, the defendant amended an- swer admit that there had been a be- collision by the tween vehicle driven the defendant and bi- cycle of O. Caradori which resulted in her death. trial, sought
At to introduce as against questions admissions given interest and answers by pretrial the defendant Jimmie Fitch F. at a deposition. you today taking “Question: As sit here Deposition your testimony you, this is it then that day, anything odd, do know or this different way by of an accident occurred in that area on the evening April No, of 1975? Answer: Sir. Ques- you plead guilty Judge Grant, Did tion: Judge before Judge Douglas Grant a the District Court County charge to as of misdemeanor motor ve- regarding April 29, hicle homicide occurrence you plead guilty did not? Answer: This personal lawyer my I was handled don’t un- legal derstand most terms. He handled that. I judgment. Question: trusted his That was Mr. Ber- Right. you Question: nard Walsh? Answer: Did plead guilty charge misdemeanor motor ve- Judge hicle homicide before Yes or Grant? No.’’ (Emphasis supplied.) objections, After a series of mistrial, permitted motion for and later a the court answer the defendant’s answer was: “Not my your recollection I not. Did Question: did at- torney plead guilty you? I don’t Answer: recall. you pled guilty You don’t know whether
Question: charge, you Answer: That’s to right. don’t recall? just don’t remember You
Question: day? (Emphasis supplied.) right.” Answer: That’s portions reading of
At the conclusion copy evidence, deposition certified offered of the defendant of conviction *6 Douglas County, Nebraska, was District Court for spite trial, At in in evidence. offered and received of stipulation of the the defendant’s the answer did, the at defendant later entered trial counsel operate fact, which struck and killed in Amy the vehicle again Caradori, denied that the defendant O. in an accident struck he involved was Caradori. parties argument of the tran-
The final however, at the conclusion defendant scribed. showing argument, to the court of made the plaintiff’s the he asserted counsel made which the “ following your- ‘Don’t statement: concern ” going pay judgment.’ to this with who is selves plaintiff’s further asserts Defendant again to reiterated a reference Bernard Walsh who at the time of motor was pled defendant the defendant with charge guilty to vehicle homicide. reading It the defendant’s contention that is plain- deposition the tiff’s counsel and in evidence and the remarks argument improper at final were impermissible reference to insurance. disagree. Plaintiff’s entitled We counsel was to guilty plea to motor the defendant’s show vehicle respect credibility and, to homicide deposition defendant, his in the statements Which plea guilty contradicted of his the fact and contra- stipulation dicted his own answer and the of his per- to counsel. The reference Bernard Walsh as a attorney any sonal of itself make does ref- plaintiff’s present appearance erence sel for coun- company repre- on behalf an insurance senting necessarily imply defendant, nor it, same. As we view ent the defendant took inconsist- positions pleadings his testi- sworn mony. Correspondingly, plaintiff was entitled inconsistency show that and comment on it. Failure to declare a mistrial was error.
toAs the remark of “Don’t counsel: yourselves pay going concern with who is this judgment,” ambiguous. best, is, at the remark is It elementary required however, that the under instructions, liable, if the defendant is found damages fix in accordance with the instructions so reasonably compensate those entitled re- Co., cover. See Inc., Colvin v. Powell & 163 Neb. any impermissi- N. W. 900. do not We find argument any impermissible ble inference of in- ruling The trial surance. stated: court on this motion Reporter “The Court was available at all * * * anybody times herein if wanted written. He import every would have had the exact word that Reporter. spoken. one chose to No call the Court import. I do not So the full know all So motions are *7 may that, It overruled.” in the context of the en- statement, tire to be such remarks could have been held
prejudicial. absence, however, In the of a complete plaintiff’s argument, record of the we are standing to unable prejudicial state the remark that alone is impermissible constituted refer- ence insurance. assigns grounds
The defendant further for mis- by plaintiff closing trial statements made in ar- gument. argu- He asserts ment-in-chief alluded the fact that no reasonable Amy’s trade would life man for a Picasso which he hypothetical figure $1,500,000. had evaluated at a of attorney suggested jury Plaintiff’s further to the justice that a defendant’s verdict would not be prayed Omaha, Nebraska. He then he would have eloquence” express had “wisdom and himself right jury persuade to render a verdict complaints. wrong plaintiff no have would so and are somewhat overblown the remarks While hold, law, dramatic, matter of cannot as a we argument they or comment. The unfair constitute assignment is without merit. assignment to the of error relates size
The last Armentrout, v. 190 Neb. the verdict. Since Selders 275, 686, in this state is that the 207 N. W. 2d the rule damages wrongful death of a measure minor society, comfort, and child includes the loss Vandenberg companionship In of the child. v. Lan- gan, 366, 192 Neb. 224 W. we affirmed a N. Vandenberg case, $36,797.80. verdict of In the there very was a unusual was evidence child youth great potential bright promising for a Amy The evidence this case reflects that future. O. Caradori was a able and bright companion- normal, child, playmates popular teachers, with her by parents. position loved her companionship, care, and comfort to evaluate the given parents, O. Caradori have her would brothers, not her and sister. We will enter into a compare in which we the relative accom- discussion wrongful plishments children in deceased death may A be set aside as actions. verdict excessive appeal when, unless, or on it the trial court clearly so exorbitant as indicate that was the prejudice, passion, mistake, or some means result apparent record, in the or it is clear that the disregarded the evidence rules law. Van Hybrid Steckley’s Co., Corn Seed 143 Neb. Auker supported by Here, 8 N. 2d 451. verdict W. evidence and the rule we established Selders the v. supra. Armentrout, clearly excessive and the de-
The verdict was being assignments merit, *8 of error without fendant’s the hereby affirmed. of the trial court
Affirmed. dissenting. J., Spencer, majority opinion respectfully I from the dissent effort of herein because of conscious inject into the element insurance trial of the case.
Attorneys engaged in the trial of cases a ought they proper procedures. to know the When pre- depart senting legitimate purpose properly from the evidence, and the conclusions to be they responsi- therefrom, drawn must assume bility improper disagree for such I conduct. majority opinion. plaintiff’s attorney de-
liberately brought inference insurance jury. attention of the A case should be tried on its facts on whether or not the defendant in- has pay judgment. surance to dissenting. J.,
Boslaugh, It seems to me that this is a case where errors assigned, separately, might if considered not be suf- require ficient cause remanded for a together, However, new trial. when considered my opinion verdict, view of the amount it is that the cause should have been remanded for a new trial. agree necessary argu-
I do not the entire object particular ment be statement recorded order to to counsel. G. al., appellees, Ernest Bahm et Ralph appellant. Raikes,
263 N. W.
Filed March 1978. No. 41281.