Boroughs v. Peterson

• Decision Date: 17 March 1911
• Docket Number: 2153
• Citation: 39 Utah 11,114 P. 758
• Court: Utah Supreme Court
• Parties: BOROUGHS v. PETERSON et al

114 P. 758

39 Utah 11

BOROUGHS v. PETERSON et al

No. 2153

Supreme Court of Utah

March 17, 1911

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by Maud Boroughs against Frank Peterson and another.

Judgment for plaintiff. Defendant appeals.

AFFIRMED, on condition that plaintiff remit part of the recovery, otherwise judgment reversed.

E. T Hulaniski for appellants.

APPELLANTS' POINTS.

A jury should not be permitted to determine a case upon its own opinion as to the justice between the parties, without even attempting to follow the evidence or the instructions of the court. (2 Thompson on Trials, sec. 2606, page 1971, and cases cited; Brewery Co. v. Bodeman, 12 Mo.App. 573; Ellsworth v. Railroad Co., 34 N. J. Law 93; Biggs v Barry, 2 Curt. C. C. [U.S.] 259.)

Whether or not there is any evidence to support a verdict, is a question of law within the meaning of section 9, article 8, Constitution. (Marti v. Smelting Co., 23 Utah 52.)

Where there is no substantial evidence to support a verdict, the question becomes one of law and it becomes the duty of the Supreme Court to set aside the judgment. (San Pedro R. Co. v. Board of Education, 32 Utah 305.)

The verdict of the jury is deemed excepted to Section 3283, Compiled Laws Utah, 1907. There being no evidence in support of such issues submitted to the jury, the court erred in refusing to take the case from the jury and again erred in refusing the defendant's motion for a new trial. (Tyng v. Constant Loraine Inv. Co., 37 Utah 304, 108 P. 1112. See, also, State v. Brown, 36 Utah 46, 102 P. 641, 24 L. R. A. [N. S.] 545.)

But the silence of the party, even where the declarations are addressed to himself, is worth very little as evidence where he has no means of knowing the truth or falsehood of the statements. (1 Greenleaf Ev., sec. 199, page 276.)

There is hardly any ground to infer acquiescence in such cases, unless it appears that the truth or falsehood of the statement made must have been within the knowledge of the party sought to be charged. (1 Jones Ev., sec. 291, page 652.)

If the occasion or the nature of this demand or the manner of making it will reasonably justify silence in a discreet and prudent man, no unfavorable inference therefrom should on that account be made against the party, and whether the silence be any ground of presumption against the party will always be a question of law, unless there is conflict in the proof of the attending circumstances. (Mattocks v. Lyman, 16 Vt. 113; Vail v. Strong, 10 Vt. 457; Gale v. Lincoln, 11 Vt. 152; 1 Greenleaf on Ev., sec. 198, page 274, note.

Verbal admissions should be received with great caution, (1 Greenleaf on Ev., sec. 200.)

Admissions as to right or title which therefore are in part admissions of matter of law and consequently are in reality but opinions, are certainly entitled to little or no weight. (Colt v. Selden, 5 Watts 525.)

Therefore it has been declared that declarations of parties are the most unsatisfactory species of evidence, because of the facility with which it may be fabricated and the impossibility of contradicting it, and because the slightest mistake or failure of recollection may totally alter the effect of the declaration. (Botsford v. Burr, 2 Johns. Chan. 405- 412; Vaughn and McKees' Heirs v. Hann, 6 B. Mon. 338; Robertson v. Robertson, 9 Watts. 32; Smith's leading cases, 6 Am. Ed., vol. 2, 452.)

An offer to compromise should not be regarded as an admission of indebtedness. (Myer v. Goggerty [Kan.], 63 P. 296.

The prevailing rule in England and in this country is that the offer to compromise will be presumed to have been made without prejudice, if it was plainly an offer to compromise. (Jones Ev., sec. 293; West v. Smith, 101 U.S. 263; Home Ins. Co. v. Baltimore Warehouse Co., 93 U.S. 527; Richards v. Noyes, 44 Wis. 609; See, also, Mattocks v. Lyman, 16 Vt. 113-118, 1 Enc. Ev. 378.)

J. D. Skeen for respondent.

FRICK, C. J. McCARTY, J., concurring. STRAUP, J., dissenting.

OPINION

FRICK, C. J.

Respondent brought this action against the appellants to recover the sum of two thousand dollars as for money had and received by them for her use and benefit. The material allegations in the complaint, in substance, are: That the appellants were conducting a gambling house in Ogden City, Utah; that respondent on the 15th day of April, 1909, was the owner of two thousand dollars in cash; that between the date aforesaid and the 13th day of May, 1909, respondent's husband took said money from her possession without her consent, and, contrary to her directions or instructions, he lost the same by gambling in the gambling house of appellants, and that they by that means and in that manner obtained and received said two thousand dollars "for the use and benefit of the plaintiff herein;" that before bringing the action respondent demanded said money from appellants, which they refused to return to her. The answer, in legal effect, amounts to a general denial. A trial to a jury resulted in a verdict and judgment in favor of respondent for the sum of five hundred dollars. The appellants present the record to this court on appeal.

The principal error assigned is that the verdict is not supported by sufficient evidence. The controlling facts developed at the trial are substantially as follows: Respondent on the 11th day of April, 1909, married one Frank Boroughs. Respondent and her husband prior to their marriage came from the state of North Carolina and were married at Ogden City, Utah. After respondent came to Ogden, she received about five hundred dollars from home, a part of which she received as the proceeds of the sale of property which she had sold, and the remainder was a gift. Fifteen hundred dollars she says her husband gave her about three days after they were married. When she was asked with regard to this gift and what was said by her husband with respect thereto, her answer was: "Not other than to take care of it--gave it to me that I might invest it in any way that I wished. . . . We had a house in view. . . . We thought we would invest the money in and live in it." When she was further asked to state how her husband "came to give you that money," she said: "Well, not other than what is a man's is his wife's." She further said that she kept all of the money aforesaid in her trunk in the room where she and her husband lived; that both she and he had access at all times to the trunk, and that they were the only persons who did have access thereto; that during the forepart of the month of May, 1909, a large portion of the money was taken from the trunk in sums from two hundred and fifty dollars to five hundred dollars at a time; that on the 12th day of May five hundred dollars remained, and that that sum was taken by her husband on that day; that the money was all gambled against her will. It further appeared that her husband was seen gambling in appellant's gambling house at least twice. On one occasion he was seen to lose eight twenty dollar bills, amounting to one hundred and sixty dollars, and he was seen playing a game denominated faro, which, it seems, was played by first obtaining what by the witness are called chips. These chips, it seems, were of different denominations or values. The witness said that respondent's husband had in his possession about one hundred and fifty dollars worth of those chips, but whether he bought them with money, whether he had won any or all of them, or whether he finally was winner or loser, the witness did not know. This was practically all the competent evidence with respect to the gambling of the husband except the inference that he lost the money in that way at some time and at some place because he had the money at one time and had parted with it in some way by the 13th of May aforesaid. Counsel for respondent, however, places strong reliance upon what he insists amounted to an admission by one of appellants. The alleged admission came about as follows: When all the money was gone, it seems respondent's husband told her he had lost it at gambling. She then called to see Mr. Peterson, one of the appellants, and she says she told him that: "My husband, Frank Boroughs, gambled two thousand dollars in your gambling house, and I am left without anything at all." She further told Peterson of her destitute condition, that she was indebted to various persons, and asked him to "give me just enough to go to my mother, who lives in South Carolina, and to pay those just debts which I owe." She further says that she told Peterson that two thousand dollars was the amount lost by her husband, "but, if he would give me one thousand dollars, I would never say another word and he would hear no more from me. . . . He told me he would study over it, and see what he could do about it." She said she gave Peterson three days to think it over. On the third day she called Peterson up over the 'phone, and her testimony proceeds as follows: "He told me that he couldn't afford--that that was the way they made their living, and he couldn't afford to listen to the whims of a woman." She said that she continued pleading with him, "and, he said if it was my money, I should have taken care of it before that hour, and that he couldn't afford to give it back." We remark that the evidence, if believed by the jury, was sufficient to sustain a finding that at one time respondent had in her possession the sum of two thousand dollars. In view of the verdict, however, the jury must have come to the conclusion that her husband had not made the gift of one thousand, five hundred dollars to her, but that he still regarded it as his own money.

While there is considerable evidence on behalf of appellants which is flatly contradictory of res...