Croco v. Oregon Short-Line R. Co.

• Decision Date: 11 November 1898
• Citation: 54 P. 985,18 Utah 311
• Court: Utah Supreme Court
• Parties: WILLIAM W. CROCO, RESPONDENT v. OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

54 P. 985

18 Utah 311

WILLIAM W. CROCO, RESPONDENT v. OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

November 11, 1898

Appeal from the District Court, Weber County, Hon. H. H. Rolapp Judge.

Action by plaintiff against defendant to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

Parley L. Williams, Esq., for appellant.

Under an allegation of "other wrongs" the plaintiff was not entitled to introduce evidence of injuries other than those sufficiently described in the complaint, to enable the defendant to know the particular matters he was required to meet. That is the very reason of the rule requiring the proof to correspond with the allegations. Batterson v. Chicago &amp Grand Trunk Ry. Co., 8 A. & E. Railroad cases, 125; Marquette H. & O. Ry. Co. v. Marcott, 41 Mich. 433; Flint v. Pere Marquette Ry. Co., 38 Mich. 714; McAbsher v. Richmond & D. R. Co., 12 S. E., 892; Mobile & O. R. R. Co. v. George, 10 S. 145; Linton v. Unexcelled Fire Works Co., 124 N.Y. 533.

That the court erred in refusing to instruct the jury as requested by the defendant involves the question of champerty and whether or not the law against champerty exists in this state.

Our contention is that the common law prevails in Utah and has existed here ever since the Territory of Utah was organized. That at common law champerty was a crime and punishable as such and all contracts tainted with it were void.

That the common law prevails in Utah and did in the days of our territorial existence is shown by the decisions of the Supreme Court of the Territory as well as by the decisions of the Federal Supreme Court. People v. Green, 1 Utah, 13; National Bank v. Kinner, 1 Utah, 100; Thomas v. U. P. Ry. Co., 1 Utah, 232; Mormon Church v United States, 136 U.S. 62; American Publishing Co. v. Fisher, 166 U.S. 464.

By the common law champerty was a crime. It is so declared by Blackstone and earlier authorities and is defined by that author as follows:

"Champerty is a species of maintenance and punished in the same manner, being a bargain with the plaintiff or defendant campum partire to divide the land, or other matters sued for, between them, if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense." 4 Blackstone's Comm., 135.

Champertous contracts are void both by law and equity. Barrien v. McLane, 1 Hoffman Ch., 421; 4 Kent's Comm., p. 4--note (b) and cases cited; Backus v. Byron, 4 Mich. 535.

In Illinois champerty is recognized as a part of the common law, and contracts between attorney and client whereby the attorney is to institute and prosecute suits at his own expense for the recovery of property belonging to or claimed by the client, for which his own compensation is to be a part of the property recovered, however honestly entered into and carried out, is champertous and void. Thompson v. Reynolds, 73 Ills. 11; Holman v. Billings, 89 Ills., 183; North Chicago St. R. R. Co. v. Ackley, 171 Ills., 100.

The same doctrine prevails in Indiana, Massachusetts, Ohio, Kentucky and Missouri. Lafferty v. Jelly, 22 Ind. 471; Lothrop v. Amherst Bank, 9 Met., 489; Weakly v. Hall, 13 Ohio 167; Brown v. Beauchamp, 5 B. T. Monroe, 413; Duke v. Harper, 66 Mo. 51.

David Evans, Esq., L. R. Rogers, Esq., and A. G. Horn, Esq., for respondent.

It appears that the only contention which counsel makes with respect to the question of excessive damages, is that the weight of evidence does not show that plaintiff was damaged as much as that found by the jury.

In the case of Nelson v. Southern Pacific, 15 Utah 328, it is held that under Sec. 9, Art. 8 of the Constitution, this court on appeal has no power to review the facts in a case at law except so far as may be necessary to determine questions of law. See also Walley v. Deseret National Bank, 14 Utah 313; Watson v. Mayberry, 15 Utah 275. See also Harrington v. Eureka Hill Mining Company, 53 P. 737; Mangun v. Mining Company, 15 Utah 537.

In the absence of any statute to the contrary, or the adoption of the common law by the legislature, the following incontrovertible propositions are supported by all authorities: First, the contract is not champertous. Second, a champertous contract can never be questioned except as between the parties to the contract. Third, in all cases, champerty must be pleaded. Sec. 3683 C. L. Utah, 1888, p. 378; Hoffman v. Vallejo, 45 Cal. 564; Barnes v. Scott, 117 U.S. 582; Euneau v. Rieger, 105 Mo. 682; Brimback v. Oldham, 1 Ida., 710; Vimont v. R. R. Co., 69 Ia. 304; Elborough v. Ayres, L. R., 10 Eq. Cas., 367; Whithey v. Kirtland, 27 N. J. Eq., 333; Davis v. Settle, 26 S. E., 557.

In the case at bar there was no plea of champerty offered upon the part of the defendant. The rule is well settled that even in a proper case where such contracts are questioned between the parties who make them, a plea upon the part of the defendant is indispensable. Moore v. Ringo, 82 Mo. 468; Pike v. Martindale, 91 Mo. 268; Braumback v. Oldham, 1 Ida., 710; Allison v. Chicago, etc. R. Co., 42 Iowa 275; Vimont v. Chicago, etc. R. Co., 69 Iowa 304; McMullen v. Guest, 6 Tex. 275.

MINER, J. ZANE, C. J. and BARTCH, J., concur.

OPINION

MINER, J.

This action was brought against the railroad company to recover damages for an injury to plaintiff's person received on April 3, 1897, at Malad bridge, in Idaho, at which time the train on which plaintiff was a passenger was derailed. The plaintiff alleges that the accident was occasioned because defendant negligently maintained an inadequate switch, side track, and road bed, and negligently and carelessly ran its train at a great and dangerous rate of speed, by reason of which the train was thrown from the track, and plaintiff became greatly and permanently injured. Upon a trial the jury found a verdict of $ 5,000 in favor of the plaintiff. This appeal is from the judgment and order over-ruling defendant's motion for a new trial.

1st, The appellant contends that the damages assessed are excessive, against the clear weight of the evidence, and so manifestly wrong as to show the amount of the verdict was unjust and influenced by prejudice and passion. Upon an examination of the testimony we find that there was evidence upon which the jury could find a verdict for the plaintiff, although conflicting as to the nature of plaintiff's injuries. In such case it has been invariably held by this court that the amount of the damages is a fact to be found by the jury from all the evidence in the case, and if there be any evidence to support the findings or verdict, this court is not at liberty, under the constitution of this state, to review alleged errors in avoiding it. In such case the court will consider the evidence only so far as may be necessary to determine the question of law. Nelson v. So. Pac. Co., 15 Utah 325, 49 P. 644; Walley v. Des. Nat. Bank, 14 Utah 305, 47 P. 147; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Harrington v. Eureka Hill Min. Co., 58 Pac. R. 757, 17 Utah (;) Mangum v. Bullion Beck Min. Co., 15 Utah 534, 50 P. 834; Anderson v. Min. Co., 15 Utah 22, 49 P. 126; State v. Halford, decided at Sept. Term, 1898, 17 U. (;) Reese v. Morgan Silver Min. Co., decided at Sept. Term, 1898, 17 Utah (.)

2d, The plaintiff, under objection and exception, was permitted to testify on re-direct examination, that his memory was poorer than it was before the injury, and under like objection that the testimony was not within the allegations of the complaint, the plaintiff was permitted to testify that there was a difference in his eyesight after his relapse, and that he could not see out of his right eye.

The witness had made contradictory statements concerning several matters of injury indicating an absence of correct recollection, and counsel for the plaintiff contends that the question as to memory was asked for the purpose of explaining apparent contradictions in his testimony, and that the testimony concerning plaintiff's eyesight after his discharge from the hospital was offered for the purpose of basing a hypothetical question to medical experts who afterwards testified in the case, the contention being that the relapse was a partial stroke of paralysis on the right side, caused by an injured spine, and not an epileptic fit, as contended for by the appellant.

It does not appear that any demurrer had been interposed to the complaint for uncertainty, or otherwise. In its charge to the jury the court limited the damages to the allegations of the injuries set forth in the complaint, and no reference was made to the loss of eyesight or memory.

We think the testimony was competent under the claim of counsel, and also under the complaint filed. The result of the injury charged in the complaint, and traceable to the wrongful act was that the plaintiff became greatly and permanently injured, cut and disfigured in and on his back, head and arms, and that he received injuries in other parts of his body, and was internally injured in the region of his back and abdomen; and that by reason of such injuries so received, plaintiff became sick, sore, and disordered and crippled for life, from which injuries he suffered great mental distress, and was unable to follow his usual avocation.

Judge Sutherland in his work on damages, 3 Suth. on Damages, (2d. ed.) 2261-2, says:

"The general rule in tort is that the party who commits a trespass or other wrongful act is liable for all the direct injury resulting, although such injury could not have been contemplated as the probable result of the act done. The plaintiff may show specific direct effects of the injury without specifically alleging them; as that he was thereby made subject to fits. If...