Opinion
No. 33632.
Filed January 20, 1956.
1. Master and Servant: Trial. Where the inference is clear that there is, or is not, a master and servant relationship, the determination is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered. 2. Children Born Out of Wedlock. Under the statutory law of this state a child born out of wedlock shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child. 3. ___. In order to establish a child born out of wedlock as an heir it is necessary to establish (1) that such child was born out of wedlock, (2) that a particular person was the father, and (3) that the father recognized the child agreeable to the requirements of statute. 4. ___. A writing sufficient as an acknowledgment to establish heirship of a child born out of wedlock must be one in which the paternity is directly, unequivocally, and unquestionably acknowledged. 5. ___. The statement in former opinions of this court that "the writing must be in and of itself sufficient, unaided by extrinsic evidence, to establish the paternity," is overruled. 6. Statutes. Where a statute is plain and certain in its terms, and free from ambiguity, a reading suffices, and no interpretation is needed or proper. 7. Courts. In construing a writing it is the duty of the court to give to words used their ordinary and popularly accepted meaning in the absence of explanation or qualification. 8. Trial. A verdict will be set aside as excessive if it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law.
APPEAL from the district court for Cheyenne County: JOHN H. KUNS, JUDGE. Affirmed in part, and in part reversed and remanded with directions.
Neighbors Danielson, Chambers, Holland Groth, and Orie C. Adcock, for appellant.
Maupin Dent, Martin, Davis Mattoon, and Richard W. Satterfield, for appellee.
Heard before SIMMONS, C.J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This case was presented to this court and after hearing an opinion was adopted. The opinion was reported as Peetz v. Masek Auto Supply Co., 160 Neb. 410, 70 N.W.2d 482. The case was later considered on motion for rehearing. In the light of this later consideration the conclusion has been reached that the opinion adopted is erroneous in some of its material aspects. Accordingly it is withdrawn and the following adopted as the opinion of the court.
It appears proper to point out here that the statement of facts in the former opinion accurately and fully reflects the evidence as it appears in the record to the extent of its pertinence to the theory on which the previous opinion was written. Since, however, the present opinion adopts a view opposite to the one announced in the former opinion it becomes necessary to consider facts not considered or necessary to be considered previously. In this light it appears advisable and expedient to cause this opinion to contain its own statement of facts rather than to adopt a statement from the former opinion.
This is an action for damages in three causes of action commenced in the district court by John Peetz, Jr., administrator of the estate of Marvin L. Hagler, deceased, plaintiff and appellee, against Masek Auto Supply Company, Inc., a corporation, defendant and appellant. The Bekins Van Lines Company, a corporation, was a defendant in the district court and is an appellee here. Apparently Bekins Van Lines Company and Bekins Van and Storage Company are one entity. They have been so treated by all parties throughout these proceedings. They will therefore be so treated herein and will be hereinafter referred to as Bekins. There was not and is not now any claim that damages may be recovered against Bekins in this action. Its only interest is to protect its legal right of subrogation. It therefore will not be further referred to as a party to the action.
The salient facts of which the action is an outgrowth are that on June 11, 1953, at about 5 p.m. on U.S. Highway No. 30, a few miles west of Sidney, Nebraska, Marvin L. Hagler was operating a tractor truck with a trailer in an easterly direction. The truck belonged to him and the trailer belonged to Bekins. He was at the time employed by this company and was engaged in the performance of service for it. At that time Kenneth J. Conner was operating an automobile in a westerly direction on this highway. The automobile was his own. The two vehicles collided practically head-on and both drivers were killed.
John Peetz, Jr., was appointed administrator of the estate of Marvin L. Hagler and in that capacity he instituted this action. By his petition the plaintiff alleged that the death of Hagler was caused by the negligence of Conner. He alleged further that at the time Conner was employed by the defendant and engaged in the performance of service in its behalf and that thus the negligence of Conner was attributable to it.
By the first cause of action the plaintiff sought a recovery for the benefit of the next of kin of Hagler, by the second he sought to recover for funeral expenses, and by the third he sought to recover for damages to Hagler's truck.
Insofar as necessary to denominate here the alleged next of kin were Michael Dennis Hagler and David Lee Hagler, two minor children of Marvin L. Hagler, born out of wedlock, which children the plaintiff contends were legitimated in such manner as to permit action to be maintained for their benefit.
Issues were joined and a trial was had to a jury. No general verdict was returned. Pursuant to instructions by the court a special verdict was returned on a form prepared and presented by the court. The form contained some questions propounded without answers. The jury answered all questions requiring answer. The form contained other questions with answers thereto by the court. The form with the answers of the jury and those of the court was returned as the verdict of the jury.
The propriety of this manner of submission or this type of verdict is not attacked by assignment of error, hence it will not be considered herein.
Pursuant to this submission the jury found by its answers that Conner was an employee of the defendant; that at the time of this occurrence he was acting within the scope of his employment; that Conner was guilty of negligence which was the proximate cause of the collision; that Hagler was not guilty of any negligence which was the cause or proximately contributed to the collision; that Michael Dennis Hagler and David Lee Hagler were dependent upon Marvin L. Hagler for contributions to their support; that Marvin L. Hagler would have contributed on the average each year for 19 years to Michael Dennis Hagler $1,136 and to David Lee Hagler for 17 years $1,165; and that the reasonable value of the damage to the truck was $925. BY adoption of the answers to questions made by the court the jury found that Michael Dennis Hagler and David Lee Hagler were the next of kin of Marvin L. Hagler; that the reasonable rate of return upon investments in Cheyenne County, Nebraska, was 4 percent; and that the reasonable value of the funeral expense was $928.30.
Following the rendition of verdict a motion for judgment notwithstanding the verdict or in the alternative for new trial was filed by the defendant. This motion was overruled after which judgment was rendered on the first cause of action for $29,093.15, on the second cause of action for $928.30, and on the third cause of action for $925, with the total of the three amounting to $30,946.45. The appeal here is from this judgment.
As grounds for reversal the brief of defendant contains six assignments of error. The first is that the court erred in not holding as a matter of law that Conner was an independent contractor. The second is that the court erred in admitting exhibit 15 in evidence. The third is that the court erred in holding that Marvin L. Hagler had legitimated Michael Dennis Hagler and David Lee Hagler and in failing to hold that they had not been legitimated. The fourth is that the court erred in failing to hold that the verdict was the product of passion, prejudice, mistake, or some other means not apparent in the record, or that the jury disregarded the evidence or rules of law. The fifth is that the court erred in requiring the jury to find specially as to the damage, if any, sustained severally by Michael Dennis Hagler and David Lee Hagler. The sixth is that the court erred in failing to sustain defendant's motion for judgment notwithstanding the verdict.
The subject of the first assignment of error was considered at length in the former opinion and the conclusion reached therein was adverse to the defendant. We have found no basis for a departure from that conclusion.
By this assignment of error the defendant substantially contended that the evidence was insufficient upon which to submit to the jury the question of whether or not Conner was an employee of the defendant and at the time was in pursuit of its business rather than an independent contractor.
In the former opinion it was said: "Where the inference is clear that there is, or is not, a master and servant relationship, the determination is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered. Restatement, Agency, 220, p. 483. See, also, Thurn v. La Crosse Liquor Co., 258 Wis. 448, 46 N.W.2d 212."
The following was also stated therein: "Each case must be determined with a view to the surrounding facts and circumstances, the character of the employment, and the nature of the wrongful act. Whether the act was or was not such as to be within the scope of his employment is, ordinarily, one of fact for the determination of the jury. See, Dafoe v. Grantski, 143 Neb. 344, 9 N.W.2d 488; LaFleur v. Poesch, 126 Neb. 263, 252 N.W. 902; 35 Am. Jur., Master and Servant, 553, p. 986."
Following these statements of principle and a review of the evidence relating to this subject, which review we deem unnecessary to repeat herein, the conclusion reached was that the question presented was one for determination by the jury. Nothing has been presented here which convinces that the conclusion there reached was wrong. Accordingly it must be said that the assignment of error is without merit.
The second and third assignments of error require consideration together. As already pointed out Michael Dennis Hagler and David Lee Hagler are claimed to be next of kin of Marvin L. Hagler. This claim is based upon the contention that they are children of Marvin L. Hagler born out of wedlock but who have acquired the right to be considered heirs by reason of action of Marvin L. Hagler in his lifetime as prescribed by section 30-109, R.R.S. 1943. The pertinent portion of the section is as follows: "Every child born out of wedlock shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, * * *."
In the state of the record herein the plaintiff is not entitled to prevail on the first cause of action unless the evidence is sufficient to entitle Michael Dennis Hagler and David Lee Hagler to be considered heirs within the meaning of the quoted statutory provision. There appears to be no dispute about this.
The burden therefore devolves upon the plaintiff to establish that (1) the children were born out of wedlock, (2) that Marvin L. Hagler is their father, and (3) that the father recognized them as his children agreeable to the requirements of the statute. In re Estate of Oakley, 149 Neb. 556, 31 N.W.2d 557.
The first and second of these elements of proof have been established clearly and distinctly without contradiction. Exhibit 15 is an instrument which the plaintiff asserts establishes the third element. The exhibit is an application by Marvin L. Hagler for employment by Bekins. It contains a statement of the personal record of Hagler in his handwriting on a form furnished by Bekins. In response to the following in print on the form: "Names, ages, relationship and address of any persons dependent on you for support or to whose support you are contributing" he wrote: "Ruby Hagler — Wife age 26. 2 Sons. David Lee Michel Dennis Hagler. age 2 — 1 yr." The instrument was signed by him "Lee Hagler." It is made clear that the person signing as Lee Hagler was the same person as the Marvin Lee Hagler who was killed in the accident involved in this case. The signing of the instrument was in the presence of R. Lowell Johnson.
The question presented by the second and third assignments of error is that of whether or not this exhibit is sufficiently an acknowledgment by Marvin L. Hagler of the fatherhood of Michael Dennis Hagler and David Lee Hagler to entitle them to be considered as his heirs.
The formal insufficiency of the instrument is not stressed on this appeal and therefore it will not be considered herein. The only question to be considered is the substance of the declaration by Marvin L. Hagler.
A principle declared applicable in reference to an acknowledgment of the father of a child born out of wedlock is that it must be one in which the paternity is directly, unequivocally, and unquestionably acknowledged. Lind v. Burke, 56 Neb. 785, 77 N.W. 444. See, also, Moore v. Flack, 77 Neb. 52, 108 N.W. 143.
In Lind v. Burke, supra, it was said: "* * * the writing must be in and of itself sufficient, unaided by extrinsic evidence, to establish the paternity." This statement was approved in Moore v. Flack, supra. Thus according to the pronouncement in these cases the office of the statutory provision is dual.
The former of these two statements has never been disapproved by this court. The latter may be said to have been disapproved although not by reference thereto in Thomas v. Estate of Thomas, 64 Neb. 581, 90 N.W. 630. In that case we think it was indicated that the office of the statute is single and not dual and involves only the sufficiency of a writing in acknowledgment of paternity of a child born out of wedlock. In the opinion it is said as to the office of the statute: "If no more is asked of this son than the statute by its terms requires, he is entitled to a share of his father's estate if the evidence given and offered on his behalf is true. * * * Such we conclude it is."
The court, in the case of In re Estate of Winslow, 115 Neb. 553, 213 N.W. 819, without citation of earlier cases, effectually accepted the statute literally and substantially concluded that it was satisfied if there was a statement by a father, in writing, signed in the presence of a competent witness, acknowledging paternity. In the opinion it was said: "The evidence fully justifies the finding of the district court that Winslow did, in writing, in the presence of a competent witness, acknowledge himself to be the father of Mrs. Warriner. He thereby legitimated her as his daughter, and she is entitled to inherit his estate."
There cannot be said to be any ambiguity in the statute or the instrument here involved. The terms of both are clear and specific. The applicable rule as to statutes in such circumstances is that where a law is plain and certain in its terms, and free from ambiguity, a reading suffices, and no interpretation is needed or proper. See, State ex rel. School Dist. v. Moore, 45 Neb. 12, 63 N.W. 130; Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802; Cross v. Theobald, 135 Neb. 199, 280 N.W. 841; City of Grand Island v. Willis, 142 Neb. 686, 7 N.W.2d 457; State ex rel. Smith v. Nebraska Liquor Control Commission, 152 Neb. 676, 42 N.W.2d 297; Ledwith v. Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409; City of Wayne v. Adams, 156 Neb. 297, 56 N.W.2d 117.
As to written documents the rule appears to be that when construing a writing it is the duty of the court ordinarily to give to the words used their ordinary and popularly accepted meaning in the absence of explanation or qualification. This is the rule with reference to instruments constituting a contract. See O'Shea v. Smith, 142 Neb. 231, 5 N.W.2d 348. It is also the rule to be applied in the interpretation of wills. See Brandeis v. Brandeis, 150 Neb. 222, 34 N.W.2d 159. No reason is apparent as to why any other rule should apply to a writing such as is involved here.
The conclusion in this connection therefore is that to the extent that Lind v. Burke, supra, and Moore v. Flack, supra, hold that a writing in order to satisfy the requirements of section 30-109, R.R.S. 1943, must be in and of itself sufficient, unaided by extrinsic evidence, to establish paternity, they are overruled.
It is concluded that, as was declared in Lind v. Burke, supra, a writing to satisfy the requirements of the statute should be one in which the paternity is directly, unequivocally, and unquestionably acknowledged.
Exhibit 15 in this case appears to meet the test of the statute and the decisions. The inescapable purport of the exhibit is: Dependent upon me for support are two sons. Their names are David Lee and Michael Dennis Hagler. Their ages are respectively 2 years and 1 year. The exhibit was signed in the presence of a competent witness.
It is difficult to perceive how paternity could be acknowledged more directly. It is difficult to see wherein equivocation may be attributed to the acknowledgment. It is likewise difficult to see how the acknowledgment may be regarded as questionable. We conclude that exhibit 15 did satisfy the requirements of the statute.
It may well be said that this decision on the facts is not consistent with similar facts involved in Lind v. Burke, supra, but that ought not to deter a proper decision in this case.
It may also be said that it conflicts with certain statements contained in the case of In re Estate of Oakley, supra. In the opinion in that case it was stated that insurance applications signed in the presence of a witness were insufficient as acknowledgment of paternity under the statute.
In view of the clear proof of illegitimacy and paternity here and the conclusion as to the quality of exhibit 15 it must be said that assignments of error 2 and 3 are without merit.
The fourth assignment of error challenges the sufficiency of the evidence to sustain the amount of damage awarded as to the first cause of action. The substantial contention is that the verdict is excessive and exorbitant and that this is apparent on the face of the record, and accordingly it should be vacated and set aside.
The rule to be applied in the determination upon this assignment is the following: "A verdict may be set aside as excessive by the trial court or on appeal only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or it is clear that the jury disregarded the evidence or rules of law." Plumb v. Burnham, 151 Neb. 129, 36 N.W.2d 612. See, also, Banta v. McChesney, 127 Neb. 764, 257 N.W. 68; Remmenga v. Selk, 152 Neb. 625, 42 N.W.2d 186; Dunn v. Safeway Cabs, Inc., 156 Neb. 554, 57 N.W.2d 75.
From an examination of the evidence in the light of this rule it becomes clear that this assignment must be sustained and a new trial granted on the first cause of action. Neither the special findings of the jury as to the probable contributions of Marvin Lee Hagler to Michael Dennis Hagler and David Lee Hagler nor the judgment entered thereon find support in the evidence.
As already pointed out the jury by its verdict found that Marvin Lee Hagler, had he lived, would have contributed an average annual amount for the two children of $2,301 for 17 years and $1,136 for one for an additional 2 years.
Hagler was first employed by Bekins about December 27, 1952. He continued in that employment until the time of his death. The information as to his employment theretofore is meager. There is none as to his earning capacity except for a period of 1 year when he was engaged in farming. He appears to have closed out the operation at which time he had $900. For the period he worked for Bekins he received $4,867.52 mileage earnings. This was paid on the basis of 18.8 cents a mile while on the road and $12 a day for any full 24-hour layover period. In addition he received $521.54 as hourly pay for loading and unloading. According to studies made by Bekins about two-thirds of the mileage paid was used up by Hagler in expense of operation. This was a burden he was required to bear.
On the basis of this evidence Hagler had received a total net income for the period from about December 27, 1952, to June 11, 1953, of approximately $2,150. There is no evidence justifying a reasonable inference that he would in the future succeed to a substantially higher rate of compensation.
As to the actual contributions Ruby Hagler, the mother of the two children and the person in charge of the household, testified that Hagler's contribution to the support of the household was about $250 a month. This was for four people when Hagler was away and five when he was at home. She further testified that his contribution for the two boys was about $50 each.
It was in the light of this evidence that the jury returned its verdict.
It is reasonably inferable that after the verdict was returned the court computed the total for the period or periods involved and then ascertained its present value in conformity with a formula stipulated and agreed to by the parties as disclosed by the bill of exceptions, and rendered judgment in that amount.
It appears obvious that a verdict and judgment based on a theory that Hagler probably would have contributed any such amounts as indicated finds no support in the evidence. It clearly appears that the evidence and appropriate rules of law were disregarded.
By the fifth assignment of error it is urged that it was improper to require the jury to separately find specially the damage, if any, sustained by Michael Dennis Hagler and David Lee Hagler.
The theory is not that a special finding should not have been made, nor is it the theory that damage separately for the two was not proper to be considered by the jury, but only that there should not have been a separated finding in the verdict. The cases cited in support of the contention are In re Estate of Lucht, 139 Neb. 139, 296 N.W. 749, and Tate v. Barry, 144 Neb. 517, 13 N.W.2d 879.
The argument in support of the theory as we interpret it is that in a case such as this, prosecuted pursuant to authority of section 30-810, R.R.S. 1943, the ultimate distribution of a judgment recovered is made by the county court, therefore it is improper to require a jury in the district court to specifically find the amount of damage to individuals.
Neither the cases cited nor the statute supports the contention. It is true that the distribution in cases such as this is made through the county court but it is a function of the district court to ascertain the amount to be distributed. In the statutory provision (section 30-810, R.R.S. 1943) the following appears: "The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained. The avails thereof shall be paid to and distributed among the widow or widower and next of kin in the proportion that the pecuniary loss suffered by each bears to the total pecuniary loss suffered by all such persons."
It is a contradiction to the specific terms of the statute to say that the verdict should be for the amount of damages which the persons in whose behalf the action is brought have sustained and at the same time to say that the jury may not ascertain specifically under proper instructions the amounts of damage to particular persons.
We conclude therefore that the fifth assignment of error is without merit.
By the sixth and last assignment of error the defendant urges that a judgment notwithstanding the verdict should have been rendered in its favor.
In the light of what has been said herein it is clear that our conclusion is that as to the first cause of action defendant is not entitled to a judgment in its favor notwithstanding the verdict but is entitled to a new trial.
As to the second and third causes of action the only observable basis for a contention that the defendant is entitled to a judgment notwithstanding the verdict is the contention that the verdict of the jury finding that Conner was employed by the defendant and was at the time in the pursuit of his master's business was not sustained by the evidence. This contention has been decided herein adversely to the defendant. The assignment is therefore without merit.
The decision arrived at is that the judgment on the first cause of action should be and it is reversed and the cause of action remanded for a new trial. The judgment on the second and third causes of action should be and it is affirmed.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED.