This is an appeal from a jury verdict and judgment awarding damages to the plaintiff as a result of an automobile-truck collision. We affirm the judgment of the district court.
All of the following facts have been stipulated by the parties. The defendant is a Nebraska corporation dealing in veterinary supplies with its principal offices in Fremont, Nebraska. At about 2:25 a.m. on the morning of January 24, 1968, Darwin Wegner, at that time president and general manager of the defendant, driving an automobile owned by defendant, was in a collision with the plaintiff’s truck. The collision occurred when Wegner, proceeding south, went left of the highway centerline into the northbound lane of traffic, colliding head-on with plaintiff’s truck. Wegner was killed instantly in the collision. Wegner did not have proper control of his automobile at the time of the accident; plaintiff’s truck was entirely within its own lane; Wegner was driving while under the influence of aleo hoi, his blood having 0.31 percent alcoholic content; and plaintiff’s driver was free of all negligence in the collision. Plaintiff’s stipulated damages were $13,801.46.
The trial court submitted the issue of defendant’s liability for Wegner’s negligence to the jury. The jury found for the plaintiff and awarded the full stipulated amount of damages.
Defendant contends the trial court erred in refusing to hold that the proper statute of limitations had run against the plaintiff’s action. Plaintiff did not file a claim in Wegner’s estate within the prescribed period set by the county court, but elected to sue Wegner’s employer, the defendant. Under section 30-609, R. R. S. 1943, if a person having a claim against a deceased person’s estate does not exhibit his claim to the probate court within the time set by the court for that purpose, he is forever barred from recovering on the claim. Defendant contends that this statute, commonly referred to as the nonclaim statute,- not only applies to tort actions brought against a decedent’s estate, see Rehn v. Bingaman,
This is not a question of determining the master’s liability after the servant has been found not liable. Here the servant is protected because of a statute' of limitations, not because'of any‘decision on the merits. Nebraska has énacted the nonclaim statute with the pur
pose of securing the earliest possible settlement of the estates of deceased persons compatible with the just rights of creditors. The limitations embodied in that legislation exist independent of the general law of limitation affecting actions against living persons. In re Estate of Tucker,
It is true that the basis for plaintiff’s claim is the imputed negligence of the deceased employee; but, under the particular facts of this case, any action the plaintiff may have against the employer must be considered independent of the employee’s liability. The employer and employee are regarded as joint tort-feasors having joint and several liability. Allen v. Trester,
The defendant also claims the trial court erred in submitting the issue of defendant’s liability for Wegner’s negligence to the jury. Defendant contends there were no disputed facts or conclusions which justified submitting the issue to the jury, thus allowing it to find that Wegner was within the scope of his employment at the time of the accident. We find no merit in defendant’s contention since an examination of the evidence shows that, at a minimum, a jury question was presented.
On the afternoon of January 23, 1968, Wegner drove from Fremont to Beemer, a distance of approximately 46 miles, in a 1966 Oldsmobile owned by the defendant. As the defendant’s president and general manager, Wegner had been furnished this car to carry on the defendant’s business. There is no indication from the record that the car was used for anything but company business.
The evidence shows that Wegner went to Beemer to conduct business for the defendant. While he was there he contacted Jim Albers, a customer of the defendant, and subsequently discussed business matters with Forrest Magnuson, the defendant’s salesman. Wegner had arrived in Beemer at approximately 4 p.m. He talked with Albers for about one-half hour
During the evening Magnuson talked to Wegner about some difficulties he was having collecting on certain accounts owed the defendant. The two agreed to meet in Beemer at 8 a.m. the following morning to further discuss the delinquent accounts.
Both Magnuson and Albers were under the impression that Wegner intended to stay overnight in Beemer. Wegner had had both Albers and the bartender make a reservation for him at a local motel. However, after taking Albers to his pickup truck, Magnuson having left in his own car, Wegner drove back toward Fremont. It was then that he collided with plaintiff’s truck. Although no one will ever know for sure, it was apparently Wegner’s intention to go home for the night and return to Beemer the next day for his meeting with Magnuson. The defendant claims that since the collision occurred while Wegner was apparently headed home, he was not within the scope of his employment.
In a case such as this, whether the act in question was within the scope of employment is, ordinarily, one of fact for the determination of the jury. Watts v. Zadina,
Wegner was both the president and general manager of the defendant. He had been invested with broad' general powers of management and superintendence, and was obviously the principal officer of the defendant, having general charge of the defendant’s activities. His powers were coextensive with the powers of the defendant itself. He had broad implied or ostensible authority to do any act which was usual or necessary in the conduct of the defendant’s business. See, Barber v. Stromberg-Carlson Tel. Mfg. Co.,
The judgment of the district court is correct and is affirmed.
Affirmed.