Charles Bridwell and Sylvia Bridwell, husband and wife, appellees, Brett Walton and Gary Walton, doing business as Walton Contracting, appellants.
Pleadings: Appeal and Error. Permission to
amend a pleading is addressed to the discretion of the trial
court, and an appellate court will not disturb the trial
court's decision absent an abuse of discretion.
Verdicts: Juries: Appeal and Error. A jury
verdict will not be set aside unless clearly wrong, and it is
sufficient if any competent evidence is presented to the jury
upon which it could find for the successful party.
Motions for New Trial: Appeal and Error. A
motion for new trial is addressed to the discretion of the
trial court, whose decision will be upheld in the absence of
an abuse of that discretion.
Appeal and Error. To be considered by an
appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error.
Pleadings: Damages: Waiver. Failure to
mitigate damages is an affirm ative defense which must be
pled or it is waived.
Motions to Dismiss: Directed
Verdict. A motion to dismiss for failure to
prove a prima facie case should be treated as a motion for a
Waiver: Appeal and Error. A defendant who
moves for a directed verdict at the close of the
plaintiff's evidence and, upon the overruling of such
motion, proceeds with trial and introduces evidence waives
any error in the ruling on the motion for a directed verdict.
Appeal and Error. A trial court cannot err
in failing to decide an issue not raised, and an appellate
court will not consider an issue for the first time on
Neb.App. 2] 9. Verdicts: Appeal and Error.
Passion or prejudice is shown when the verdict shocks the
Damages: Remittitur. Generally, where the
damages awarded are greater than the amount claimed in the
declaration, or, from the facts disclosed by the evidence,
are clearly excessive, and the illegal portion is
distinguishable from the legal, the defect may usually be
remedied by a remittitur of the excess.
Jurors: Verdicts. A
quotient verdict is one in which the jurors, for the purpose
of arriving at a verdict, agree that each should write on his
or her ballot a sum representing his or her judgment, that
the aggregate should be divided by the number of jurors, and
that the jurors will be bound by the quotient as their
__:__. It is the agreement by the jurors to be bound by the
quotient which creates the invalidity of quotient verdicts;
the process of arriving at a quotient is valid so long as
there is no prior agreement to be bound by the result.
from the District Court for Nuckolls County: Vicky L.
Johnson, Judge. Affirmed.
M. Sullivan, of Sullivan Shoemaker, PC, ...