dissenting.
I respectfully dissent from the majority opinion. In dissenting it becomes necessary to direct particular attention to two startling fallacies of the majority opinion since these fallacies furnish in part if not in whole the premises from which flow the ultimate factual and legal conclusions of the opinion.
One of these involves the application of the legal theory that a case will be disposed of on appeal on the theory on which it was presented to the trial court by the parties.
The other involves the application of the rule that parties- to an action will be bound by the admissions made in their pleadings.
I find no fault with either as a legal principle but I most emphatically insist that the application and manner of application made of them by the majority opinion completely fail of justification.
As to the first of the propositions mentioned the opinion correctly quotes the following from the brief of appellant filed in this court on an appeal from the judgment in the earlier trial: “We believe that the fair inferences from the facts are that the deceased pulled out the four small mattresses from the bunks in the jail, put them in the southeast comer of the bull pen, laid down on them with a lighted cigarette that set fire to the edge of the mattresses and the mattresses smoldered there until all of the oxygen in the room was gone and both of the men suffoocated (sic) to death therefrom. The deceased man’s body evidently was burned after *308his death because there was no evidence of a struggle whatsoever.”
It is by the theory thus expressed in a brief on a former trial of this case that the majority opinion states the appellant is bound. This cannot be correct.
If it be conceded, and I do concede that this may be true in certain cases under certain circumstances, that* a party on a second trial of a case is bound by his presentation on the first trial, that rule has no application here.
Before it may be said that a party is bound by the theory on which he has submitted his case to the trial court the theory must find support in his evidence or pleadings or both. For authority' to sustain this proposition I need only to direct attention to the cases cited in the majority opinion.
I submit that this theory finds no support in the pleadings which were not changed from the first to the second trial. I submit also that a search of the evidence of plaintiff on the first trial and likewise on the second will disclose no evidence to sustain any such theory.
As pointed out in the majority opinion this is a quotation from argument in a brief. Regrettably then we have come to the point in this case where we are deciding issues on arguments contained in briefs rather than on the record as presented by an authenticated transcript and bill of exceptions.
The majority opinion correctly states that in her petition the plaintiff alleged that the sheriff permitted matches to be in the jail, also that the defendants generally denied the allegations of the petition and then alleged that when the deceased was confined to the jail he had on his person cigarettes and matches which he retained. It fails however to note that nowhere does the petition contain a direct allegation or one from which a reasonable inference may be drawn that plaintiff’s decedent had matches. It fails' also to note that on motion of defendants plaintiff was required to amend *309her petition. By this amendment she did not directly or by reasonable implication admit that decedent had matches. It was after this amendment that the answer was filed.
After the answer was filed plaintiff filed a reply as follows:
“Comes now the plaintiff and for her reply to the answer of the defendants filed herein, denies each and every allegation in said answer contained, except those which specifically admit to be true statements and allegations of the plaintiff’s petition.
“Wherefore, plaintiff renews the prayer of her petition.”
It will be observed that by this reply the plaintiff denied all of the allegations of the answer except such as were admitted to be true but significantly not a single allegation was admitted.
The majority opinion on this state of the record says: “Under this rule it must be held as established by the pleadings that there were matches upon the person of the deceased when he was confined in the jail.”
The rule referred to is the following: “When a general denial is interposed to a pleading, coupled with and followed by admissions, the denial yields to the admissions to the extent thereof.” The cases supporting the rule are set forth in the majority opinion and neither with the rule nor the supporting decisions do I find any fault. Here there is a general denial plainly not coupled with nor followed by admissions.-
The position taken in this respect by the majority is in my opinion indefensible in this instance. For the future, if it is to be adhered to as a precedent, it converts a reply which is in terms a general denial into an admission of the defensive allegations of an answer thus lifting from the shoulders of a defendant the burden of sustaining his position.
It is submitted that the following, beyond the subjects already discussed, fairly reflects the record before this *310court, contains an analysis and presentation of the controlling legal principles, and sets forth the conclusions which should have been declared:-
The cause was tried to a jury. A verdict was returned in favor of defendants and judgment was entered on the verdict. A motion for new trial was filed which was overruled. From the judgment and the order overruling the motion for new trial the plaintiff has appealed.
■The cause was before this court previously and it is reported under the same title as here in 149 Neb. 261, 30 N. W. 2d 906. The question there was that of whether or not the district court erred in sustaining the motion of the defendants to dismiss the action on the ground that the evidence failed to sustain a- cause of action in favor of plaintiff and' against the defendants. It was the conclusion of this court that the district court did so err.
The brief of appellant contains eight assignments of error all of -which, in the light of the view taken of the record, require consideration. They are substantially as follows: (1) The court erred in giving instruction No. 15; (2) the court erred in not following the plain mandate of this court remanding the case; (3) the court erred in giving instruction No. 10; (4) the court erred in refusing to give instruction No. 1 requested by the plaintiff; (5) the court erred in refusing to allow exhibit No. 14, the prison calendar, to be received in evidence; (6) the court erred in permitting the sheriff to' testify as to customs in his own jail, or in other jails; without any proper foundation; (7) the court erred in not permitting' plaintiff’s attorney -to cross-examine the sheriff as to facts sworn-to in his answer and contradicted by his testimony; and (8) the court erred in overruling plaintiff’s motion for a new trial.
The facts upon which a determination of the questions presented depends are substantially as follows:
On the night of December 20, 1943, at about 1:30 a. m., the plaintiff’s decedent and Ted Summers, also deceased, were locked in the jail of Dakota County, Ne*311braska. Neither the sheriff nor anyone on his behalf remained in close proximity to the jail during the remainder of the night. The caretaker of the courthouse arrived about 7:15 a. m. and smelled smoke and on investigation found that the smoke was coming from the jail.- He procured a key from the sheriff’s office, opened the jail door, and found the jail filled with dense smoke. He also found the plaintiff’s decedent lying on the floor of the jail dead.
The jail is in the courthouse which is of what is ordinarily termed fireproof- construction. In the jail are two cell blocks, a passage separating the blocks, and what is referred to as a jail room. In the cells which were within the blocks there were beds or bunks on which were mattresses or sleeping pads and probably other bed clothing. The floor is concrete. There are two doors to the jail which are referred to as an inner and outer door. In the jail room are two glass windows hinged at the bottom and latched at the top. They open inward. The latches on the windows are about seven feet from the floor and were in reach of plaintiff’s decedent and Ted Summers. There was no method of' communication from the inside of the jail except through a wicket in the outside door.
On the night in question O’Dell and Summers had been arrested by the marshal at Homer, Nebraska, and turned over to the sheriff and his deputy for detention until the following morning when it appears that the marshal proposed to file a criminal complaint against them.
When O’Dell and Summers were placed in the jail they were given free range of the jail. Only the outer door was locked against them. The two windows referred to were probably closed and apparently the bed mattresses and the bed clothing were in their proper places. There is no evidence of instruction or information given as to the facilities within the jail. There is no evidence that O’Dell had any such previous information although the evidence is subject to an inference *312that Summers did since it is stated that he had been lodged in the jail on two or three previous occasions.
There is no evidence that either O’Dell or Summers occupied beds in the cells. When found they were both on the floor outside the cells some distance apart. Summers was pillowed on the floor practically fully dressed. O’Dell had apparently removed his outer clothing and was lying in the burned and charred remains of the bedding which had been removed from the cell beds. There was no evidence of struggle on the part of either of the men. The windows in the jail were closed. The evidence indicates that the two men died from suffocation from a fire which burned bedding on which O’Dell reclined which was still smouldering when they were found.
There is no direct or tangible evidence as to what caused the fire. It ought to be said here that these were the only inmates of the jail. There is evidence that O’Dell was a habitual smoker of cigarettes and that he smoked in the sheriff’s office before he was placed in the jail. There is none that he smoked after being placed in jail or that he took cigarettes or matches with him into the jail. Neither of the men was searched before he was confined.
It was on the facts, I think fairly reflected here, and the instructions of the court that the cause was submitted to a jury and on which the jury based its verdict.
As was pointed out in the former opinion of this court the action is grounded in negligence on the part of the sheriff the specifications of which are (1) that he failed to have a guard or custodian in charge of the jail, (2) that he failed to provide fife protection on the night in question, and (3) that he failed to provide proper ventilation for the jail which failure was responsible for the death of plaintiff’s decedent.
The first claimed error is that instruction No. 15 was improper. By the instruction the jury was informed that the statutes of Nebraska do not require the sheriff *313to maintain a constant guard over prisoners incarcerated in the county jail for the purpose of preventing them from harming themselves either deliberately or áccidentally, also that the only provision of the statute with reference to the maintenance of a constant guard to county jails applies to a situation when the condition of the jail is such as requires a constant guard to prevent escape.
The first phase of the instruction correctly reflects the state of our statutes. Likewise does the second phase which doubtless refers to section 47-113, R. S. 1943. While it is not thought that the instruction is erroneous as a statement bf law, yet in the light of an examination of all of the instructions it could reasonably be considered as misleading. This instruction places an emphasis upon the lack of duty on the part of the sheriff without at any point in the entire instructions giving the jury adequate information regarding either the statutory or common-law duties and obligations of the sheriff with regard to the management or control of the jail or his conduct with regard to persons confined therein.
The second assignment charges that the court erred in refusing to follow the mandate of the former opinion in this case. In that opinion the judgment was reversed and the cause remanded on the theory that there negligence of the sheriff was an issue which should have been submitted to a jury for determination, of course under proper instructions. In the opinion it was said:
“We think it was error for the trial court to refuse to submit to a jury the failure of the sheriff to provide a .guard for the jail in its described condition and the proper inferences to be drawn from such failure.”
It was also said:
“We also think it was error for the court to refuse to submit to a jury the question of the adequacy of ventilation under the circumstances and the failure to make *314outside communication available and the proper inferences to be drawn from these circumstances.”
Again it was said:
“We think that the question of whether or not the sheriff under the circumstances failed to respond to his duty to the plaintiff’s decedent, in the light of the potential for danger of which he knew or in the ordinary exercise of his faculties for observation and understanding should have known, was a question for determination by a jury.”
There can be no doubt that these pronouncements amounted to a mandate that the subjects mentioned therein should be submitted to a jury for determination. Beyond the recitals in instruction No. 1 which substantially follow the allegations of the petition as to negligence the jury was given no information as to the issues tendered by the plaintiff. Therein and nowhere else was it given adequate information regarding the common-law or statutory duty of the sheriff in the circumstances disclosed.
The quoted pronouncements relate to issues presented and they could not have been intelligently or adequately considered without information upon the law relating thereto. The jury was entitled to appropriate instructions on these issues. This court said in Boice v. Palmer, 55 Neb. 389, 75 N. W. 849: “A party to an action is entitled to have the jury instructed with reference to his theory of the case, when the pleadings present the theory as an issue and it is supported by competent evidence.” This was quoted with approval in Landrum v. Roddy, 143 Neb. 934, 12 N. W. 2d 82, 149 A. L. R. 1041.
In Stoffel v. Metcalfe Construction Co., 145 Neb. 450, 17 N. W. 2d 3, this rule, worded slightly different, was followed. Further in this case it .is made clear that to satisfy the requirements of the rule the theory of liability or non-liability must appear in the instructions.
On the question of whether or not the pronouncements in the former opinion correctly reflected the legal prin*315ciples which should prevail attention is directed to Allen v. Cavin, 179 Okl. 460, 66 P. 2d 40. In the opinion there it was said: “It may be seen, therefore, that the weight of authority is that the statutory duty imposed upoñ the sheriff to keep his prisoners safely charges him with the duty of ordinary care to' accord them decent treatment and to see that they do not come to harm by negligence.” See, also, Dunn v. Swanson, 217 N. C. 279, 7 S. E. 2d 563; Ratliff v. Stanley, 224 Ky. 819, 7 S. W. 2d 230, 61 A. L. R. 566; Kusah v. McCorkle, 100 Wash. 318, 170 P. 1023, L. R. A. 1918C 1158; Eberhart v. Murphy, 110 Wash. 158, 188 P. 17, on rehearing, 113 Wash. 449, 194 P. 415; State of Indiana ex rel. Tyler v. Gobin, 94 F. 48; 57 C. J., Sheriffs and Constables, § 512, p. 899;
It should be held therefore that the failure to properly instruct on the issues in conformity with the former opinion was error prejudicial to the plaintiff.'
By the third assignment it is contended that the court erred in giving instruction No. 10 by which the question of contributory negligence . of plaintiffs' decedent was submitted to the jury. The substantial contention in this connection is that there was no evidence showing contributory negligence on his part and none from which a reasonable inference could be drawn.
If there was no such evidence then of course it was error to give the instruction. In Allen v. Clark, 148 Neb. 627, 28 N. W. 2d 439, it was said: “This court has repeatedly said that, where contributory negligence is pleaded as a defense, but there is no evidence to support such defense, it is prejudicial error to submit such issue to a jury.”
The alleged contributory negligence which was the occasion for the giving of the instruction was the charge that plaintiff’s decedent lighted a cigarette or cigarettes which ignited the material burned in the jail and that by his act he and his fellow prisoner came to their death and further that he failed to open a window or the *316windows, which if it had been done would have prevented the disaster.
As to the windows there is no evidence that he knew anything about them or their fastenings. From the position in which the bodies were found and theTocation of O’Dell with relation to the' fire it may be at least conjectured if not even reasonably inferred that suffocation took place without either of them having knowledge of danger. It appears that no evidence relating to the windows justified the giving of the instruction on contributory negligence.
The only evidence upon which to base a conclusion that O’Dell negligently caused the fire was that before being locked in the jail he had been smoking. There is no evidence that he entered the jail with a lighted cigarette or that he lighted one after entry. That he did light a cigarette and that it was his act that caused-the fire may well be conjectured or considered a possibility or even a probability but as either a possibility or probability it is not supported by evidence necessary to say within the meaning of the decisions that this was a reasonable inference based on evidence, or an inference based on proved or conceded facts. Kilpatrick v. Richardson, 40 Neb. 478, 58 N. W. 932; Kearney Canal & Water Supply Co. v. Akeyson, 45 Neb. 635, 63 N. W. 921; Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N. W. 2d 412. Verdicts may not be allowed to rest upon conjecture, possibility, or unsupported probability. Zitnik v. Union P. R. R. Co., 91 Neb. 679, 136 N. W. 995; Painter v. Chicago, B. & Q. R. R. Co., 93 Neb. 419, 140 N. W. 787; Mischnick v. Iowa-Nebraska Light & Power Co., 125 Neb. 598, 251 N. W. 258; Bowers v. Kugler, 140 Neb. 684, 1 N. W. 2d 299; Bowerman v. Greenberg, 142 Neb. 721, 7.N. W. 2d 711; McCullough v. Omaha Coliseum Corporation, 144 Neb. 92, 12 N. W. 2d 639.
The conclusion reached is that the evidence did not justify the giving of instruction No. 10.
*317In the fourth assignment of error it is urged that the court erred in refusing to give instruction No. 1 requested by plaintiff. The requested instruction is as follows: “You are instructed that there is a presumption, in the absence of evidence to the contrary, that the deceased, Judd Marion O’Dell, exercised due care and caution for his own safety, and, in considering the issue of negligence of the deceased, you should give the plaintiff the benefit of this presumption, until it is overthrown by a preponderance of the evidence.” The wording of this instruction was approved in Sorensen v. Selden-Breck Construction Co., 98 Neb. 689, 154 N. W. 222. It is true that it was stated in that opinion that such an instruction was unnecessary yet in approval the court said: “It is conceded that these instructions correctly state abstract propositions of law, but it is urged that, as stated, they are not applicable to the facts in this case, and were therefore misleading and prejudicial.” If the declaration may not be regarded as precedent still it may be considered for its persuasive effect. See, also, Albrecht v. Morris, 91 Neb. 442, 136 N. W. 48.
In the light of the view taken that there was no evidence of contributory negligence the portion of the instruction dealing with the issue of negligence of the deceased was improper. Treated as a request for an instruction on the presumption of which the plaintiff was entitled to have the benefit and the request containing a correct statement of legal principle in that connection the plaintiff was entitled to a proper instruction in that respect. It was error for the court to refuse to so instruct.
The fifth and seventh assignments of error will be discussed together since the two relate to similar principles of law. The court refused to admit in evidence the prison calendar which among other things contained a notation made by the sheriff as to the reason for placing O’Dell in the jail. The notation contained substantially a statement that O’Dell was intoxicated. This *318was in conflict with the testimony given by the sheriff on the trial with regard to the condition of O’Dell. The sheriff signed and acknowledged an answer which was filed in the case wherein he declared that O’Dell was intoxicated. This likewise was in conflict with his testimony given on the trial. .
The condition of O’Dell had a material bearing upon the care and caution required of the sheriff in the imprisonment and detention of O’Dell. Therefore it was proper for plaintiff to have the conflicting statements of the sheriff before the jury for the purposes of impeachment or of testing his credibility as a witness. Thomas v. Poulson, 149 Neb. 44, 30 N. W. 2d 59.
It was error to refuse to admit into evidence the calendar and to refuse to allow cross-examination as to the answer. It so happens however that the error was not prejudicial since plaintiff got before the jury otherwise all that could have been obtained by admission of the -exhibit in evidence or by cross-examination in regard to the answer.
The sixth assignment charges that the court erred in permitting the sheriff to testify as to the custom in the Dakota County jail and other jails with regard to allowance of smoking by prisoners and with regard to allowance of fire extinguishers in the jail.
The diligence required of the sheriff herein with regard to the safety of O’Dell is well stated in 38 Am. Jur., Negligence, § 29, p. 673, as follows: “The degree of diligence which one must observe in the performance of his common-law duty to use care to prevent injury to others is ordinary care or reasonable care.”
It is recognized that within limitations evidence of ordinary practice or custom of persons in the performance under similar circumstances of acts like those alleged to have been done negligently may be competent as bearing upon the question of whether or not the person charged has used ordinary and reasonable care. 38 Am. Jur., Negligence, § 317, p. 1015.
*319It is also recognized, likewise within limitations, that evidence of custom is admissible to prove negligence as well as to disprove it. 38 Am. Jur., Negligence, § 317, p. 1015.
In this case however nothing appears in the record to justify the admission of evidence of custom. There is no contention that the sheriff should have provided a fire extinguisher within the jail. Also there is nothing beyond conjecture that the fire was started as a result of O’Dell or Summers taking smoking materials in or smoking within the jail. The evidence received as to custom could not be considered in aid of the defense of the sheriff against negligence on his part or of contributory negligence charged against plaintiff’s decedent.
The last assignment of error is that the court erred in overruling the motion for a new trial. By the rulings on the other assignments the correctness of this contention has been made manifest.
The judgment of the district court should be reversed and the cause remanded for a new trial.
Boslaugh, J., concurs in this dissent.