analyzing whether nonparty to prior litigation “had control of or actively participated in” that litigation
How later courts described this case
- analyzing whether nonparty to prior litigation “had control of or actively participated in” that litigation
- “[t]his makes it clear that no apparent heir or beneficiary under the wrongful death statute has any vested right to any of the proceeds recovered in said action until after a hearing has been held before the county court, and a determination made by the court as to who is entitled to receive the proceeds and how much. . . . One may employ counsel to assist a litigant, or may testify as a witness in his favor or give other active support to his cause in court, without becoming a party to the record . . .”
- “The general rule is that there is no legal privity between a husband and wife in such a sense that a judgment for or against the one will conclude [sic] the other, where the action concerns their separate property, rights, or interests not derived from each other.”
- generally no privity between a husband and wife “where the action concerns their separate property, rights, or interests not derived from each other.”
Written by the judges who cited it.
The opinion
Spencer, J.,
dissenting.
I respectfully dissent because I believe the trial court properly sustained the motion for summary judgment. Recovery for the plaintiff is barred by issue preclusion.
Weber v. Southwest Nebraska Dairy Suppliers, Inc. (1971), 187 Neb. 606 , 193 N. W. 2d 274 , was an action brought by the administrator of the estate of plaintiff’s wife, arising out of the same accident covered by the instant case. In that case we found that Robert N. Plickman was the sole and only person sustaining pecuniary loss in the death of his wife. The question involved was whether the negligence of the driver of the car, who was negligent as a matter of law, was imputable to Robert N. Hickman, the plaintiff herein. We held this was a jury question, reversed a dismissal at the close of plaintiff’s evidence, and sent the case back for a trial on that issue. The jury returned a verdict for the defendants.
In 187 Nebraska at 611, we said: “We fail to perceive any distinction between a situation where the action is brought by a personal representative other than the beneficiary and one where the beneficiary himself is *30 the plaintiff, if in both situations he is the sole and only person who can be benefited by the action and is guilty of negligence as a matter of law.”
In 187 Nebraska at 612, we held that if the jury should find that the negligence of Mrs. Grassmeyer was imputable to Robert N. Hickman then there could be no recovery therein. Robert N. Hickman was the only person who could have benefited from the previous action. If he could not recover in that case, he should not in this one. The issue in that case on liability, and the issue in the instant one, are exactly the same. The finding in 187 Neb. 606 should preclude a recovery herein. Clinton, J., joins in this dissent.