*1 I DETERMINED CASES (cid:127) IN THE SUPREME COURT OF NEBRASKA . Esther M. Administratrix, Jessup, appellant, v Joseph appellee. M. Davis, Filed November 1926. 24265. No.
1. jury plaintiff Trial: trials, Instructions. alike, presented fact, are entitled to have the issues of jury pleadings, submitted without introduction extraneous evidence them mislead or divert their pertinent minds from a consideration evidence to the real issues. Carrying Negligence: 2. Automobiles:. Pas- Gratuitous senger: Required. Care private Where motor the owner gratuitously person passen- vehicle carries another therein as a ger, passenger duty ordinary exercising he owes such operation vehicle, care in the will dam- be liable in ages proximate if his failure to exercise such care is the cause injury passenger. to his Enterprise. 3. -: Joint Parties cannot be be en- said to gaged joint enterprise, meaning within the of the law of negligence, community unless there be a interest objects purposes undertaking, right equal and an govern to direct and the movements and conduct other of each respect thereto. Applicability. Appeal 4. and Error: Instructions: Instructions inapplicable facts, proved to a that are which to, probably do, will, are jury, calculated mislead the ordi- narily, constitute reversible error. Assumption -': -: Ordinarily, of Facts. error court in its instruction to assume the existence of a material fact as which there evi- conflict dence. (1) Jessup Davis. plaintiff “Where a 6. Trial: Witnesses: Cross-Examination. injury interrogatories personal appropriate action seeks is in- whether the cross-examination discover *2 company, error for loss an insurance demnified from objection interrogatories an tend court to sustain to which develop question.” on the fact Miller Central Taxi to 306, promulgated as a reaffirmed and rule of Neb. practice. county: Appeal from district court for Adams Wil- Reversed. Judge. liam A. Dilworth, appellant. Montgomery Danly, & 1. E. and James Boslwugh Neely, Stiner & and Dressier & contra. Stryker Williams, Hall, Fraser, F. Hird Cline & C.W. Brogan, Raymond, Ellick & amici curise. and J., Good, Heard C. before Dean, Day, Rose, Morrissey, Thompson and JJ. Eberly, J.
Eberly, brought by Jessup, M. admin- This action Esther as was husband, Ursa Jes- of her deceased S. istratrix of estate death, alleged sup, damages to have been recover for his to operating negligence his in so caused of defendant automobile, riding an in- therein as her husband was while overturn, guest, there- as cause the car to skid and vited Jessup. by inflicting injuries Mr. fatal on Jessup while Mr. was is admitted that In the answer it overturned, riding Mr. car it his injuries his death. Defendant Jessup which caused received negligent, alleges accident that he was denies negligence Mr. resulting injuries were caused steering the car and sud- Jessup grasping wheel course, causing thereby changing it to overturn. denly plaintiff alleged and de- answer that It is further time, engaged j enterprise at the oint were both fendant re- plaintiff not entitled to of such fact and that because jury. De- submitted to fact were The cover. issues WoL.
, judgment. appeals. Plaintiff the verdict and fendant had controversy pertinent out arises facts of which this be summarized follows:. 26, Jessup Mr. in the lat- On June car, Hastings, Nebraska, touring ter’s Cadillac left over Center, highway, intending go Clay D. L. D. Nebraska. driving speed While at a of from to 40 miles eastward intersecting hour, defendant, nearing highway, an ob- traveling served another automobile south at a moderate speed, rate to the somewhat nearer intersection than the defendant. When defendant first observed the other auto- driving right-hand mobile was on the he south or side highway. collision, the traveled order to avoid a he slightly left, brakes, applied passed turned the rear the south-bound car. The course of defend- changed slightly directly ant’s car then to head so as por- east and on the north left-hand side of the traveled *3 having safely passed tion of the road. After the intersec- feet, tion a 25 distance of or 30 his car seems to have abruptly south, right angles, turned to the almost at overturned, Jessup have injuries and Mr. received from shortly which he afterwards died. negligence complained
The acts of of are that defendant driving speed, particularly was at an unlawful and reckless highway, at the the intersection of so that he lost control car; jumped leaving that he from his it car. without it, driver and without one to control con- as a sequence, the car skidded and turned over. The evidence as jumped to whether defendant from the car at the intersec- tion and before it overturned is in conflict. Defendant testi- fied that he overturned; remained the car until it that Mr. Jessup, sitting right-hand on the side of the without car,a warning, suddenly grasped steering wheel and turned it so abruptly as to turn right, causing thereby car it to overturn. Jessup After Mr. the accident was unable talk day making any and died the next without statement Moger, as to how the accident occurred. One J.C. who highway yards was on about 300 north the inter- accident, driving it at the time of section and toward jumped at near testified the car that from corner of the intersection. A number northeast witnesses, imme- who examined the scene of the accident diately occurred, made after it testified the tracks that th¿ just in- that defendant’s car showed before it entered direction; traveling northeasterly that tersection it applied the wheels to lock the brakes had been so as to cause feet; drag from 50 that for a distance of in- dragging across the mark extended about two-thirds appear, indi- did which would tersection and not thereafter highway was released. cate that the brakes had been wide, graded side on either shallow ditch and there was a graded highway. time left the Defendant’s car at no (cid:127) road, passed portion over intersection of the but as edge going very the north east it was close to graded road, only portion a few inches from of the grade. shoulder of the cashier the defendant was the
It further disclosed that Exchange Hastings; for a Bank of of the National year Jessup Mr. had from time to time been col- or more bank; immediately prior lecting paper for the bad endeavoring to make collection he had the accident been mortgage, note, ascer- and had on secured a chattel disposed mort- note tained had that the maker of gaged property. Apparently, lived maker of the note Clay county. Jessup and the time Mr. at accident, Clay for the were en route to Center against instituting action maker criminal appears mortgaged property. disposing It note for suggested Jessup enforc- this course as a means of that Mr. ing Mr. note. is also disclosed collection *4 Center, time, go Clay Jessup planned, prior to to to had bank, defendant, arranged of to cashier had him, swearing accompany a criminal of to Jessup previous trips had his own complaint. Mr. used On morning question automobile, he stated but on the him, that his have car with not his that he did defendant TERM, VOL. it, using asked if
wife was defendant he could take his which automobile to defendant assented. complains
Plaintiff fifth court’s and seventh in- jury, they structions to the wherein were informed Clay request county if the was made at the drive to Jes- sup, Jessup joint and if and defendant had over control engaged joint movements of the automobile and were in a enterprise, interest, which each had a financial then negligence imputed Jessup would of defendant preclude any recovery plaintiff. The instructions facts, propositions as law. correct abstract how- ever, do warrant not inference that defendant and Jes- sup joint drive, they had a financial interest joint had control over the car. movements true, going Clay Jessup both were desirous of Center. gratuitous passenger. Both, sense, may was a have object trip, had interest in the but it was some not joint a If had been financial interest. the bank’s note col- lected, commission; Jessup would have received a bank note, would received of its have the benefit the collection stockholder, might an in- as have received benefit, joint enterprise direct but this does not constitute car, negli- driving meaning law of within the gence. Defendant, Jessup, of the car. was control Jessup authority authority had no over defendant and no to direct Defendant was the movements of the automobile. gratuitous such, Jessup private, and, carrier owed duty ordinary operation to exercise care of the auto- mobile, damages his failure to would be liable in if proximate injury exercise such care cause passenger. evidence, jury might From have found jumped was in mo- from the car while it tion, any one to and that the car was left without because control the in- overturned and inflicted movements it juries Jessup. do not which caused death Mr. We finding actionable doubt these would warrant a facts negligence. *5 115 REPORTS. NEBRASKA
6 Jessup v. Davis. reported decisions in the is a marked discord There ap- joint enterprise, as a necessary to constitute to what is essen- negligence, what as to plied also law of negli- riding in an automobile impute person tial to a gence operation machine. of the in the of the driver riding Utah, 99, Jensen, plaintiff was Lochhead v.
In guest. The as an invited in the rear seat of an automobile In overturned, passenger her death. met was and the car driver, brought against it was the owner and an action exercising over no control passenger was held since the handling the machine operation of or or direction of the negligence overturned, prior defendant’s to the time was it imputed to operation could not be machine of the the decedent. 516, Stone,
In Crescent Motor v. 211 Ala. Co. it held: engaged joint enterprise “Parties are not in a within the negligence, community law of is a of unless there interest undertaking objects equal purposes or right govern to direct the movements and conduct of respect each other in thereto. negligence passenger,
“Driver’s cannot be on a visited not, passenger charge whether for reward or unless has or vehicle or driver.” control Cunningham City Falls, v.
In River 84 Minn. of Thief 21, engaged was said: “Parties cannot be said to be enterprise, meaning joint within the law negligence, community unless there be interest purposes objects undertaking, equal right and an govern to direct movements and conduct each respect other with thereto.” court, Kepler P., Chicago,
This St. M. & R.O. 273, injured who 111 Neb. held: “One railroad riding crossing private may accident while vehicle re guilty negli if it was cover from the railroad gence causing proximately notwithstanding said accident negligence part of the driver of the vehicle thereto, providing she was have contributed herself negligence, joint en- free from and was not on a matter of driver, terprise or common had no concern with said authority or control over him.” case driver taking village of the automobile was a relative to the Herman, Nebraska, mailing for the some let- ters. County,
In Brubaker v. Iowa it was held: Wis. *6 moving city, “A husband and wife to another where the college, husband intends to teach and the wife to attend obtaining engaged position, with a view to a are not joint negligence enterprise, impute so to as to wife the driving city of the husband while in an to automobile moving.” they which were case stress was laid upon point the wife had no direction control over the husband’s movements or control of the car. jury inapplicable proved are
Instructions to to the facts, to, do, probably and which are calculated and mislead will, jury, ordinarily, constitute reversible error. The facts, complained applicable instructions of were not to the jury plaintiff’s were préj- calculated to mislead the to the udice, giving prejudicial their constituted error. predicated giving
Error is on the of the tenth instruction Jessup because it assumes it grasped to be a fact that steering just wheel of the car before it overturned. The only question given by direct evidence on that was that de- fendant, Jessup grasp steering who testified that did However, tending wheel. there was other evidence to show that, previous this, jumped defendant had from the car position and was not in a Jessup to see or know whether Mr. grasped steering wheel. Under such circumstances it province error for the court to invade the of the might, evidence, assume as a fact that which from the way. be determined either complained of,
Other' instructions are but we ex- have amined the instructions think when taken in con- charge whole, they nection with the as a were not erroneous. foregoing opinion points The and the five first syllabus, prepared by J., agreed Good, unanimously were there-
upon by court. The must members this case However, point syllabus, the sixth fore reversed. opinion thereto, parts pertaining have and the only. majority approval of a upon question solely
This in this case court divides doctrine announced Miller Central of adherence plain- Taxi stated as follows: “Where 110 Neb. by appropriate personal injury inter- action seeks tiff rogatories whether on the cross-examination discover by an com- indemnified from loss insurance pany, objection it is to in- error for court to sustain terrogatories ques- develop which tend to the fact on that tion.”
The failed an- district court follow the rule above nounced, urges ground plaintiff fact only reversal. Plaintiff’s contentions are controverted viewpoint liabil- but the interests and thereto, ity companies generally, opposition argument presented ably have been in oral most three filed curiss. written amici briefs question actually presented by case' the record in the scope. us to be somewhat limited before be said *7 adjudication merely, opinion would Considered the as limited, necessarily likewise for the reason that be obvious any by pre- on not conclusion announced this court matters to dictum itself would amount obiter sented the record only. standpoint presented amici curiss
This case from the
of
is
general
indemnity
provisions of
in-
“the
basis that
every member of the
surance
are familiar
to
contracts
conditions,
court;” that,
existing
permit
in-
under
evidence,
suggestions
to be
troduction of
and allow
made,
injury
pro-
personal
suit is
that the defendant
in
operates
only
not
tected
insurance contracts
such
but,
jury,
practical
prejudice
the trial
as
his case before
justice;
matter,
frequently
of
results in a denial
per-
Co., supra,
Taxi
Miller
Central
rule
v.
announced
wholly
mitting
done,
rescind-
be
therefore should
to be
TERM, 1926.
Jessup v. Davis.
Notwithstanding
scope
ed.
of
record in the
limited
us,
questions pre-
we
case
before
believe
the broader
may properly
sented
now
be considered and
determined
govern
proceedings
the announcement of a rule to
further
questions
presented may
here
involved.
which
be
In 1920 an
of Nebraska
amendment
to the Constitution
25,
V,
adopted
appears
which
art.
and which
Section
provides
jus-
part:
“For
effectual administration
prompt disposition
judicial proceedings,
tice and the
supreme
may
practice
pro-
promulgate
court
rules of
courts,
courts,
cedure
to each
for all
uniform as
class
governing
in conflict
laws
such matters.” This
not
Realty
Penhansky
Drake
section was before
v.
this court
Co.,
Construction
was there
.It is to noted while this court has announced the adoption opinions disposing of “rules” in referred to in n cases it, language thq provision before constitutional and does limit the rule to the facts broad announced any case, justifies but the announcement of rule necessary “which the court deem for the administra- justice.” practice, tion of reference to the rule of With therefore, same this court stands in the relation that legislature reference to substantive law. does with Within law, the one limitation of the written consideration that sup- public policy. This controls conclusion seems rulé-making ported by history of the exercise of the *8 jurisdictions powers power been where such have con- in all “Supreme adoption Court of Judica- ferred since the of the 1873,” Act, England, passed ture and its amendments Therefore, in view of the the reversal of fact is in no manner case affected the decision of points presented, thought public now it is interests promoted by will be on the a consideration of the matter suggested by broad basis curise and the determi- the amici majority nation of the as a rule of of the court announced practice. gist seeking of the contention of those the rescission Co., swpraf
of the rule in Miller v. Taxi announced Central discovery personal injury is that in the trial action assured, existing of an relation between insurer controversy, operates prejudice jurors as to facts in degree against to such a as to assure the return of a verdict irrespective preponderance the defendant the evi- involved; suggestion dence on the mere issues and the fraught by plaintiff’s attorney such condition with so consequence ample serious that the should be deemed same ground of mistrial.
Assuredly, parties prejudicial between a relation to be least, depend part, upon would at what relation actually question far as is. obvious so before concerned, contaminating us is relation is contractual. 1922, provides: Comp. Section St. “No insurance policy or certificate of kind shall be issued or delivered copy this state unless and until a of the form thereof department has been filed trade and commerce approved by department, it.” The records of this therefore, necessary will afford us all facts for the deter- course, adop- applied, mination of this matter proposed many tion rule. We find that there are sim- agreements provisions ilarities and substantial policies required by filed as the above act. typical policy,
If we take a we find the character of in- demnity, provided by policy, as an insurance is set forth “against resulting expense, arising from loss or claims upon damages consequence of an accident the assured for occurring of the United States and Canada within the limits *9 VOL.
Jessup v. Davis. during policy, by ownership, of the term the reason of the ** * any or use of automobile or maintenance resulting in” automobiles enumerated and described herein damage company’s injury persons, property, to or to $5,000. liability being ordinarily limited to provides: above, company “In also addition to the hereby agree (1) does to defend in the name and on behalf brought against any of en- the assured suit the assured to claim, groundless not, whether account or force damages alleged be suffered the cir- suffered or under expenses described; (2) pay the cumstances hereinbefore defending any preceding in the incurred in suit described any judgment paragraph, interest on within the also the granted any hereby of the insurance costs taxed limits against thereof; (3) the assured on account to reimburse providing expense the assured for the incurred in such surgical imperative time immediate relief as is at the any accident covered hereunder.” provide: company paragraphs
And further “The right any to settle claim or suit. The assured reserves the voluntarily any liability; shall assume nor interfere any negotiation legal proceedings or the com- conducted nor, claim; any except pany at on account of assured’s own cost, claim; nor, settle without the written consent of given, company previously any expense, except incur surgical provided as herein immediate relief at time requested by company, the as- accident. Whenever securing information, sured shall aid in evidence and effecting in de- attendance of witnesses settlements and fending referred to. The assured shall suits hereinbefore coopera- company all at all times render to the reasonable payment tion and of loss and/or assistance. case expense subrogated company policy, shall be under against copartner- rights any person, to all the assured respects ship, corporation estate amount papers required payment, shall execute all and the assured cooperate to secure the com- shall with rights.” pany such diversity provisions pol- in the there is some
While many policies subject, in icies on this at least assured against against only, plainly loss lia- indemnified and not bility. provisions policy, if we And consider quoted, the as- above in connection “instructions sured,” appears which we visualize the transaction “Required accident, for as- of an as follows: event once, injured Stop at obtain name and address of sured: addresses, names, taken where after accident. Obtain witnesses, and, telephone if other car in- numbers volved, owner, number, make- name and address of license *10 and number of and in what insured. Tele- car graph telephone or home the nearest branch the office or giving regarding- information, office the above also the data owner, policy appearing car and on the reverse of card. report opportunity Follow verbal at earliest writ- the with admit, provided. ten statement on the claim Do not blanks liability. regarding no Make comment or statement the anyone except police representa- accident anor identified company.” tive of this part involved, necessarily
On the of the insurer is from engaged, the nature of the business in which it is its main- attorneys, investigators experts;, of tenance a staff of and on policyholder occurrence of an accident in which its is- involved, upon received, ap- prompt “immediate notice” the pearance paid investigators upon of its efficient and the- scene, thorough investigations facts, of the interviews (if having knowledge parties possible) persons all all and of same, together reports of facts and full with meas- preserve evidence, maps ures taken to and secure favorable photos. litigates, and Thereafter insurer as- the settles or accident, standing the conditions of the the situation and parties involved, considerations, monetary views of may deem wise. litigation follows,
If the defense is be conducted “in the- defendant,” true, by name of the but the insurer’s at- torneys, along insurer, wholly by lines determined and may to the extent the insurer’s determine- interests witnesses, testimony may of in behalf be used whose insurers, exclusively selected are necessarily agents, its and are efforts of are all obtained as- many employees, employed cases litigation. resulting suring expected de- If the success adverse, policy, in- finally to the extent of cision be defrays at- judgment the cost of surer satisfies the litigation. Indeed, torneys expenses after the occur- insurer, entire rence accident and notice to the. the insurance com- matter is within the absolute control of litigates may pany. as its interests settles determine. has, right agreement, all to ob- his waived The assured ject, ensuing influence, pro- or in manner control the He, ceedings litigation there- whether of or settlement. after, participates only the extent and acts may request or direct. manner the insurer passing general As nature it to its observed clearly us within the reason the transaction before English upon éarly champerty and which the doctrine of so, 5. Even maintenance was based. C. J. sec. negli liability proof fact of itself is not gence, of insurance alone not be mere fact should But, jury’s determinative the return of a verdict hand, other de existence of insurance should not prive rights injured ordinary proof.- To policy extent the insurer must be at considered as *11 parties the least one real interest. is now of This court practice to announce rule which would invoked afford1 parties companies, actually real insurance interest and controlling litigation, judicial the benefits of a “benevolent therein, identity, presence concealment” so their and: may totally jurors remain unknown interest to the before litigation justice opposing is to whom the tried. liti gants, request complied with? can be judicial proceedings test
The acid of truth is cross- admittedly agency examination. is the most efficacious discovery devised for which law has of truth. The is, ordinary by rule cross-examination situation [Vol. respect parties witness interest, and to subject interest, litigation, motives, his his his inclina- prejudices, tion may investigated and fully all be as- and certained, and submitted to the consideration of the testified, before whom he has oppor- and who have had the tunity observing determining just weight and and Greenleaf, testimony. (16th value ed.) of his Evidence sec. 446.
Bias
recognized
or
always
interest of a witness
as
proper
by
jury.
Chamberlayne,
be
Mod-
considered
Evidence,
ern Law of
sec.
3752. And
fact of business
with,
employment by,
party may
relations
or
be shown.
¿5
Evidence,
Chamberlayne, Modern Law
sec. 3753.
promised any
Where
has received or
been
the witness
has
testimony,
proper
giving
subject
it is a
for
of cross-
reward
Snelling,
515;
Matter Will
136 N. Y.
examination.
State,
This court, proceeding, have opinions in this attacked this pronouncement of this tribunal last been The based. Co., 110 306. His Taxi Neb. the of Miller v. Central case opinion approved honor, Judge Dean, in the course the case, facts, upon syllabus by the us which in that stated written, complains of mis- follows: “Counsel was to be as plaintiff part he show offered to conduct on the that president company, Borsky, Mr. some went soon after to make viaduct accident to measurements, attorney him for and that he*took with an company (presumably company interested an insurance suit) attorney employed him assist who was not an to present by him in the case. The offer denied. The argument sought plaintiff by convey is that to means jury intelligence company was indemni- against company. Complaint fied loss an insurance apparent attempt is also made in an was made to con- vey intelligence the same in the cross-examina- Borsky. permitted of Mr. tion The witness was not to an- ruling. ques- swer. think the court erred We tion is not new in this state. We held a like case resisting plaintiff’s if the defendant was demand in its- behalf, own that some insurance but was defend- ing, name, plaintiff under cover of defendant’s had a. right Curtis, jury. Egner make that fact known to Towle & Paine 18.” 96 Neb.
Turning Egner following approved case we find placed “(1) syllabus: us a Where personal action, injury employers’ is indemnified casualty company, proper plaintiff’s impaneling jury, counsel to show such fact when inquire juror upon of each his voir dire if he is a stock- *13 agent, any holder or or in manner interested such com- pany. (2) personal In an injuries plaintiff, action for to prove an liability, admission of may show a demand made payment defendant for injuries, for his and that defend- ant, through general manager duly agent, or authorized (3) made such admission. case, And in such if a such general manager duly agent puts authorized a refusal pay solely ground to on the it is insured and for pay, plaintiff reason it cannot is entitled to have the conversation admitted the evidence submitted to the jury, instruction, under suitable for them to deter- mine import what the true of the conversation was.” suggest would competent prove if it is
We to such appearing why a statement would it not prove competent agreement to real between the insured, certainly insurer and the contract con provision, presented a situation such such tains a right every court in such to case? As this under holding, strengthened by paragraph 4 our we are case, Egner syllabus in the wherein held': we “It plaintiff injured physician appears was un that after from, to, authority him, was without called to known subsequent injuries, employment and without his treat period to treat him a considerable plaintiff continued plaintiff’s Upon phy counsel called the trial of time. witness-stand, attempted show him sician to the Held, part employed not misconduct on the him. who opinion following we In the course of the use counsel.” give language: our assent to con are unable to this “We First, judgment, our reasons: could tention for'two second, jury; prejudiced the defendant have not over-ruling objection, error of the court Upon point we concede that should have done. as it states, conflicting; authorities, are from other but cited Foley one v. is the announced correct rule we think 246; Co., Brick Packing Ia. Brusseau v. Lower Cudahy Spoonick Co., 245; Backus-Brooks 89 Minn. Co., v. 133 Ia. 354; Smith, 217; Light, Antletz v. 97 Minn. Heat Citizens (on Lee, 561; & Power v. 182 Ala. v. re Platte Swift 10; hearing) Iroquois McCrea, 68 Kan. Co. Furnace Spoonick Co., supra, Ill. 340. v. Backus-Brooks said it is (p.359) say : is no answer ‘It to this to that the insurance -company party action, is not named as a to this for the juror bias of -by is not to be Nor determined this fact. is it an say may protect answer to that counsel client his n byusing challenge. peremptory right is his first to facts, learn the intelligently and he must do so to exercise * * * right challenge peremptorily. In order to se litigants cure to unprejudiced jurors, unbiased and we are compelled plaintiff’s right to hold that counsel had a as certain whether relationship there was such a between persons jurors called as company, and the insurance a cor *14 poration vitally result, interested in the which would dis qualify persons, because, by these implication, they would ” prejudiced.’ be biased and In furtherance of such con clusion we Duckworth, cited Anderson v. 162 Mass. holding Egner The in the case v. was followed in Koran Cudahy Co., 693, Packing Judge Letton, 100 Neb. wherein in opinion, “However, Egner the course of the stated: in v. Curtis, 18, Towle & Paine 96 Neb. this court held (on dire) may that such permitted, examinations voir be justified following and the district court in was that decis- ion.” Egner 1914,
It is to be noted the that case was decided in Co., supra, and the case of Miller v. Central Taxi de- though legislature cided in 1923. And our biennial has regular session, legislative been in pro- there has been no objection principles test or in announced these cases. fact, it seems to me that we are committed to the company, doctrine that the insurance under its contract of defendant, insurance with the becomes and is the sole in- party terested at least to the extent of in- case, wit, very surance. In a recent Cox Detroit United. Ry., (234 597) following 208 745 N. W. Mich. an- nounced as the law: army injuries by for in soldier United States
“In action vehicle, riding, in which he was motor between collision car, plain- that defendant’s evidence and defendant’s street party In- of War Risk tiff was not real in interest because 6, Congress, Act, 313, as Oct. added Act surance section 1919, (U. Supp. 514tttt), held Comp. Ann. sec. S. St. excluded, specially though erroneously was not defense such every 12353, providing pleaded ; Comp. that Laws sec. interest, party in prosecuted shall be in name of real action being mandatory.” providing that actions shall a similar section all
haveWe parties The reason prosecuted the real interest. actual status of the case a section is so that including court, jury. apparent may entire reason, just important why If is it not as this is the then appear ? parties shall real as defendants interest arrived conclusion that the con- heretofore at the We have between insurance tract of insurance insured, this, makes insurance com- in such a case as interest, and, unquestioned only pany party controlling unqualified, party de- but interested existing object of such contract as sole fense. insured, company and as well between the for, principle as case now contended proceed party of an controlled name ostensible company, the insurance both as himself directed witnesses, attorneys, yet the court as well t.he wholly fact. oblivious of that and the shall be witnesses, mdtives, and the situa- If and interest of bias witnesses, parties subject respect tion of *15 necessary subject proper litigation, and are each proceed up- juries, cross-examination must consideration to the real actual facts of case as on basis substantially by parties affected will interest who be development may essential to the true be outcome. What may facts, relations in order that these actual actual shown, It certainly proper would cross-examination. is eliciting therefore, questions ex- seem, the fact of the isting by insurance and the wit- relations sustained each they permitted. ness to the insurance must be If permitted, ordinary right are not of cross-examination denied, litigant “rights deprived is and a is thus his proof” application ordinary to which the rule entitles of the him. passing be said in court is committed this. law, party to the fact as a matter of where a offers
n awitness in
proof
cause,
him,
is,
of his
he vouches for
represents
worthy
State,
him as
of belief.
v.
Masourides
105;
70;
Arman,
Krull
Sands,
86 Neb.
110 Neb.
Nathan v.
In the form of the before us the real defend- ant, though fact, apparently, unnamed as a matter of seeks to avail himself of the benefit of the vouchments of the os- party tensible defendant. Under the terms contract insurance, apparently cannot said that the witness for, standing veracity by called and vouched as to defendant, is, apparent fact, witness, when he act- ually party selected and called as the witness of the real interest, company, the insurance and entitled other to no Indeed, legal theory procedure vouchment. the entire liability (cid:127)outlined in these contracts for insurance contem- plates proceeding secretly, real, though carried unknown, party interest, making use of concealment and (cid:127)deception. incompatible Its essential nature is therefore “open judgments publicly with an openly court” and compel permit proceeding arrived at. To is to participate countenance what is tantamount to a fraud. thought procedure
Lastly, contemplated it is in these liability contracts, defense, whereby though actually company, made and controlled the insurance is concealed the name of the ostensible just enlightened opposed public policy. ato It is cer- tainly encourage, patent recognize, that for courts to en- aid, especially by of a force and means benevolent conceal- ment, carrying portion out of this contracts of *16 REPORTS. NEBRASKA [YOL.
Jessup Davis. v. pro- invite, judicially companies, conceal is to insurance in na- liability evils similar world into the mote Bush, 60 Ins. v.Co. to in Lancashire ture to those referred would addition, extended the invitation thus Neb. 116. wrong there tempted that carry it assurance to those with unfortunates, retribution and no for the would be no relief wrongdoers judicially wrongdoer, would because for names concealed, their our courts in the records of Still, the veil underneath appear known. would not or be by precedent, mask, procedure, maintained or behind time, truth, passing developed with inevitably will just- resisting payments, oppressive same vexatious for them- ly due, persistent secure endeavor to the same assured, selves, and shadow under and name in- just the fire escape liability from that characterized an past. surance of the recent business “Open Court” doctrine of It would seem “Equality judgments openly before at and also arrived permit good to be public principles cannot law” are secret, judi- abandoned, openly limited, qualified, or or cially or otherwise. therefore, rule of cross- follows, must be one there litigants irrespective are to whether applied
examination bodies, corporate the rule persons natural 306, right and should Taxi 110 Neb. Miller Central court, provisions Therefore, under the be adhered to. Nebraska, for V, art. of the Constitution of section justice, reiterates and con the effectual administration personal plaintiff in a the doctrine “Where firms interrogatories on the injury appropriate action seeks is in whether the defendant discover cross-examination to company, it is error by an insurance loss demnified from interrogatories objection to sustain court for the question.” Miller v. develop on that the fact which tend hereby promul Co., supra. rule is And this Taxi Central jurisdiction. in this practice all courts gated rule of as a grounds, when we consider the indeed, on broader And ever-increasing automobile, efficiency enhanced use, improvements numbers in active increased our highways, protective pol- and the increase in the number of owners, icies of insurance issued to automobile and then astounding public call to mind the list of casualties on our impelled roads we are seek wreck- for the cause of this *17 age property destruction of life and cannot limb. automobile, there, highway, may or If be the alone. not operate pleasure it not rest in those who these machines of public thoroughfares? on usefulness our The ever- increasing proportion casualties are all to the in- out of creasing number used. we thus automobiles Are not that, arranged driven to conclude when such insurance is for, feeling liability, responsibility, as as on the well part lessened, thereby of the individual insured is and that ordinary bred, recklessness or lack of rather care is than ordinary quo greater promoted? care held in statu or care question jury trying Should not such be one for the or court consideration, the case as other fact not- submitted for question as causing part party of intent on the of the injury, ques- may claimed but as such on fact bear negligence tion of his partic- care or lack of care or ular case? judgment
It follows that re- of the district court is proceedings conformity versed and remanded for further opinion. with this
Reversed. Good, J., dissenting. forth,
For the reasons hereinafter I set cannot concur part majority opinion that of the which holds: “Where plaintiff personal injury by appropriate in a action seeks interrogatories on the cross-examination to discover whether the defendant is indemnified from loss an in- company, it is error for the court to sustain surance. objection interrogatories develop which tend to the fact question.” on that previously It is true that rule was Co., announced in Miller v. Central Taxi 306. Neb. case, however, given no reason for the rule was save supposedly holding it was on .that based of this court REPORTS. NEBRASKA Egner Curtis, Co., In the Towle Paine 96 Neb. v. & inquire proper was ruled that latter case it dire, jurors, they or other- on voir are stockholders their if carrying company indemni- wise insurance interested against fying or transac- from the accident loss theory This on the out the action arose. was tion of which necessary plaintiff to to enable that such information ruling challenges. I prudently am exercise his With that however, decided, point bear- has no in entire accord. ing author- question under and is consideration ity Taxi in Miller Central the rule announced contending supra. I wish to understood do not bring proper evidence it is in no before case may arise indemnity defendant carries insurance. Cases proper, for the where such disclosure showing may'be stock- the interest or bias of witnesses who carry- holders, officers, agents employees ing indemnity for defendant. painstaking
I have authorities made a examination question upon question precise and find where *18 view, contrary expressed in presented, has been to that practically every opinion, majority has taken been jurisdiction question, passed upon save that has that and the our states Nebraska. The courts 27 of sister majority contrary federal courts take view that holding Among opinion. is error to it decisions permit personal injuries, plaintiff, in an action argument jury the de offer to the evidence or make by indemnity protected fendant in the action 486; Martin, following: Ala. Standridge are the v. 203 288; Blythe, Ex Dry Ala. Goods Co. v. 208 Steele-Smith Llewellyn 220; parte Co., v. Iron 212 Ala: Roche Woodward Elec 563; & Co., Pierce v. United Gas Iron 140 Works Cal. Idaho, 176; Co., Co., 34 Boom tric Wilson v. Joe 161 Cal. St. Knoebel, 372; 233 253; Ruwisch v. Jeffery, 259 Ill. Mithen v. Trenkle, 139; Ryan App. v. 526; Lilly, 188 Ind. Ill. v. Martin Bald Light, v. 636; Power & Traction Co. 199 Ia. Danville 369; Sawyer Co., 184; win, Ky. Shoe 90 Arnold Me. 178 v. 23. Ralby, 228; v. 245 Kerr Fulton Feins Mass. v. National 191; Co., Mfg. Co., Grubaugh Murphy Brass 155 Mich. v. 551; Anderson, 476; 209 Mich. Gracz v. 104 Minn. Gore Brockman, App. 231; Blair, v. 138 65 Mont. Mo. Wilson v. 155; Herrin, 340; Daly, v. 80 Lambert & Co. Miss. Sutton Law, 507; Bell, Simpson Co., v. 79 N. v. 201 J. Foundation 479; 20; Lee, N. v. 206 N. v. Y. Akin Y. Southern Starr Co., 587; Wicklund, 49 Cotton Oil 165 N. v. Car. Stoskoff 708; 491; v. Sinsheimer, N. v. 107 Dak. Or. Curran Jones Lorch, 247; Parker, 442 243 Duke 125 Pa. St. v. S. Car. Prewitt-Spurr Mfg. Woodall, 605; Lone Co. v. 115 Tenn. 1111; (Tex. Coates, App.) 241 Star Gas Co. v. S. Civ. W. 959; (Tex. Cooper, App.) v. 142 Bianchi Levinski W. Civ. S. 378; Washington Brick, Millar, Westby v. & 94 v. Lime Vt. Co., 289; Mfg. Appalachian Co., Walters v. Power Wash. Chybowski Bucyrus 332; 676; Co., Va. 127 Wis. W. 33; Czaja, v. Yellow Cab 173 Wis. Remmel v. Smith 503; v. Newby, 266 not & Co. Fed. 287. I do Wis. Stewart expressing desire be understood as the view that by majority of of this court should be ruled action holdings courts, they except are' of other unless where upon based sound reason. sought offering purpose
What to be attained jury? I think that all know that the evidence involved, purpose any of the offer was not to elucidate issue might but for the effect that in render- it have ing fact, plaintiff. plaintiff a verdict for in this case does contend otherwise. useful What testimony? could be served in the introduction of such Was pertinent this, issue the case? To ascertain perhaps present- were it is state desirable to the issues that guilty pleadings. They (1) ed are: Was negligence prox'imately Mr. caused the death of Jes- sup? (2) guilty contributory negligence? Jessup Was *19 (3) engaged joint Jessup defendant enter- Were prise any, negligence so if should imputed Jessup? plaintiff’s (4) be re- The amount any. covery, if indemnity insurance,
If defendant carried fact prove disprove any would tend neither nor to light by pleadings; any issues raised nor throw would it question jury’s on the for the consideration. The matter inquired any entirely about was collateral to and outside of presented by pleadings. proffered issue If the evidence received, then, should have been it not have been would proper parties jury for the to disclose to the the amount of indemnity by defendant, insurance carried and to introduce contracts, jury might in evidence his insurance so that extent, know the exact terms and conditions on which the is indemnified? Would not the defendant en- be present jury any possible might titled to to the defense that against by be made in an action him his insurer? Would pertinent jury not consider-any possible be as for the company might defense make in an And, jury action the defendant? if the should consider any possible such facts and shofild believe that defense that might attempt the insurance to make was unten- able, accordingly, render a verdict would such verdict binding upon company? the insurance think that We might no one would so contend. The defendant be held jury indemnified, liable because believed that he was might brought when there valid defense to an action against insurer, might him be, fact, and he not jury indemnified. The verdict of the would in no wise be binding upon company. only the insurance All this clearly why any evidence, more pertinent shows tried, view, real issues my to be should be excluded. In introduction of such evidence could serve no useful likely jury and was to mislead the and divert their atten- tion from the real issues this case. This court and other generally courts incompetent condemn the admission of irrelevant jury matters and condemn the submission to the pleadings, issues not raised because such evi- dence and such instructions tend to mislead and confuse the likely wrong and are to lead to a verdict. majority opinion supposed of a the terms contract *20 great upon insurance set of are forth and commented at length. “supposed I no use the terms because contract” insurance, policy policy, of nor con- the terms of are granted every tained in the I one record. take it for that large companies will concede there is a writ- that number of ing insurance, companies indemnity and that some of the many indemnity write con- different forms of insurance may indemnity be contracts of insurance tracts. There containing major- and the terms conditions set forth in the ity opinion, but there is not a scintilla of evidence the record of such a contract. suggested majority opinion
It is that party defendant, company is real least at to the extent carried of the insurance the defendant. This mere is * assumption, upon nothing appearing based in the record. It also that defendant will his assumes be able to recover against assump- loss insurer. mere action This is again. » tion suggested company It is further that the insurance re- is sponsible for of the entire conduct the defense and calls pleases, calling party such witnesses as it that veracity ;(cid:127) for witnesses vouches their therefore the should know that the insurance is the one veracity who vouches for the of the witnesses called. It veracity a me is new doctrine to of a witness should person be determined who.calls him. some- happen person . poor reputation times that a or stand- ing veracity probity may call a one of as witness high hand, probity. party character and On the other high standing may, by exigencies character and situation, required to call as a witness one who is case, then, is, not of that character. latter the wit- given high person ness to be standing faith and credit because witness; reputable him a or is calls witness high probity given character and to be little credence character, person because who calls him as a Besides, Certainly, rule no such obtains. witness? majority opinion company, the insurance assumes that
(cid:127)26 [Vol.
Nelson State. policies actions, high who those control are not standing. Again, assumption, this is mere character upon any not based fact disclosed the record. ruling respectfully I trial court’s Submit sus- taining right. objection think I the correct rule good there reasons for should be unless are disclosed offering evidence, excluded, it if should brought jury they should be instruct- the attention admitted, ed and to as to the for which it con- *21 purpose alone. sider it JJ., Day, Rose and concur in this dissent.
Oscar Nelson State Nebraska. 19, 1926. No. 25392. Filed November 1. Criminal Law: Misdemeanors: Jurisdiction District court, original, A district the exercise as dis- Court. tinguished appellate, jurisdiction, empowered try from its is
and determine misdemeanors. Appearance: 2. -: an Issuance Warrant. Where prosecuting attorney properly information is filed duly therein, per- upon served named who sonally present through in court and his counsel attacks validity charges against motion the of the him therein con- tained, judge may, discretion, upon him district in his call plead previous thereto, without issuance service of war- upon any “complaint” including charges. rant such Jury: 3. im- is essential of Panel. fair Selection justice partial sixty administration the list of names bjf jury from which the is drawn shall not be selected officers having litigation an interest the result to be tried by such nanel. provide officers, jury - — : Where who -. list of sixty names, required by 9073, Comp. section from St. panel drawn, challenged which the time at the performance' duties, capacities, in their individual society, they combination members of a secret in which memberships, engage also have endeavor to secure the conviction of certain and for have