Foxley v. Gallagher

• Citation: 55 Utah 298,185 P. 775
• Decision Date: 01 December 1919
• Docket Number: 3396
• Court: Supreme Court of Utah
• Parties: FOXLEY v. GALLAGHER et al

185 P. 775

55 Utah 298

FOXLEY v. GALLAGHER et al

No. 3396

Supreme Court of Utah

December 1, 1919

Appeal from District Court, First District, Box Elder County; J. D Call, Judge.

Action by James H. Foxley, by his guardian ad litem, against F. H Gallagher and others. Judgment for plaintiff, and defendants appeal.

REVERSED and cause remanded for new trial.

Joe W Rozzelle, of Salt Lake City, for appellants.

W. J. Lowe and Charles E. Foxley, both of Brigham, for respondent.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

The plaintiff, James H. Foxley, a minor, while traveling on a motorcycle in a northerly direction, October 27, 1918, on a public highway in Box Elder county, Utah, came in collision with an automobile driven in the opposite direction by F. H. Gallagher, one of the defendants. The plaintiff received serious personal injuries in the collision, and his motorcycle was likewise considerably damaged.

Plaintiff, by his guardian ad litem, James G. Foxley, brought this action to recover damages for the injury so sustained. A jury found the issues in favor of plaintiff, and judgment was entered thereon. All of the defendants appealed from the judgment, but the appeal of the defendant F. H. Gallagher was abandoned. Two errors are relied on for a reversal of the judgment: (1) The exclusion of certain evidence offered by defendants; and (2) the insufficiency of the evidence to justify the verdict.

The automobile was owned and driven by the defendant F. H. Gallagher; the other defendants were his wife and friends. The business upon which they were traveling appears to have been a Sunday excursion for pleasure, from Salt Lake City to Logan and return. It is claimed by respondent that appellants were engaged in a joint enterprise with the driver, F. H. Gallagher, whose negligence caused the collision, and that appellants are therefore jointly liable for the injury. On the other hand, appellants contend they were merely invitees of Gallagher, had no control whatever over his conduct and management of the machine, and were in no manner responsible for the injury. The only evidence relied on by respondent in support of his contention as to a joint enterprise is the testimony of one of the appellants, Jerry Toomey, who testified in substance that he had been invited by the Gallaghers to take this trip. He said he thought he would be permitted to pay his share of the expenses. He had no understanding with Gallagher to that effect, but was told by defendant Schaaf "it was to be fifty-fifty." He paid his portion of the gasoline expense to defendant Schaaf, who settled with Gallagher. This phase of the case will be referred to later.

During the trial of the case one Charles Whitworth was sworn as a witness for defendants. He was conducting a garage business at Brigham City, was called by defendant F. H. Gallagher to visit the place where the collision occurred on the evening of the accident. It was dark when he arrived there and was raining very hard. After describing his efforts to remove the automobile from the road and his experience as a garage man, he was asked in substance to state, in view of all he saw and did concerning the automobile, and in view of his experience as a garage man, whether, the automobile was on the east or west side of the road at the time of the collision. The question was objected to by respondent and objection sustained. The question appears to be somewhat involved. It asks not only as to what the witness saw and did respecting the automobile in order to reach a conclusion as to its position at the time of the collision, but also includes as a factor his experience as a garage man. However, this assignment of error is without merit for the reason that the witness was asked on redirect if he had made any examination for the purpose of determining the position of the automobile, as to whether it was on the east or west side of the road when the collision occurred, and he answered he did not. Every legitimate purpose for which the former question could have been asked was fully covered by the answer of the witness.

On the question of the insufficiency of the evidence to sustain the verdict appellants contend that as against them there was no evidence whatever as to their negligence or responsibility for the accident; that they were merely invites of defendant F. H. Gallagher, who owned and drove the automobile, and, as before stated, had nothing whatever to do with his control and management of the machine. Under these circumstances they insist that the evidence against them is wholly insufficient to support the judgment. In our opinion this contention of appellants is unassailable. There is no evidence whatever of their participation in a joint enterprise in a legal sense so as to render them liable, nor is there evidence of any act or omission on their part constituting negligence. 33 Cyc. 1015 to 1017, inclusive. Even the trial court seemed to appreciate the fact that the verdict was wrong as to some, if not all, of the appellants. Respondents, however, attempt to meet this situation by the undisputed fact that appellants made no motion for a nonsuit at the close of plaintiff's evidence, nor any request for a directed verdict when the case was submitted to the jury. It is apparently assumed by respondent's counsel that, no matter how insufficient the evidence may be, or whether or not there is any evidence at all to support a particular hypothesis, if a party omits to move for a nonsuit, or to request a peremptory instruction, the court can give him no relief unless the court of its own motion sees fit to set the verdict aside. The trial court seemed to be imbued with the same idea. The record discloses that at the time the attempted appeal of defendant F. H. Gallagher was disposed of the court said:

"The record may show in this case that at the time the case was tried there was no motion for a nonsuit. The fact is the court expected the defendant's counsel to make a motion for nonsuit as to some of these defendants. The court also expected and looked for a motion for a directed verdict as to some of the defendants. That was not made, and it appears to the court that the defendant Gallagher desired to have all these parties retained for some purpose, thinking he would be benefited thereby. I also expected there would be a motion for a new trial on this ground. And at the time the motion for a new trial was made I asked the parties to proceed to argue. It was submitted without argument. There was no one here to press the motion, and if there had been a motion made, I want to say now, no doubt, some of these defendants, not designating which ones, would have been dismissed. This statement may be inserted in lieu of the court's inserting it in the settlement of the bill, because I want the Supreme Court to know just what the record was."

The excerpt quoted demonstrates conclusively that the trial court not only understood that the evidence against some of the defendants was insufficient to sustain a verdict against them, but also considered itself powerless to grant relief. In this respect the court was in error. Understanding and viewing the case as it did, the just and prudent thing for the court to have done would have been to set the verdict aside. Comp. Laws Utah 1917, section 6983, provides:

"The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending on its own motion, without the application of either of the parties, when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a...