Kirk v. Salt Lake City

• Decision Date: 19 March 1907
• Docket Number: 1812
• Citation: 32 Utah 143,89 P. 458
• Court: Utah Supreme Court
• Parties: KIRK v. SALT LAKE CITY

89 P. 458

32 Utah 143

KIRK v. SALT LAKE CITY

No. 1812

Supreme Court of Utah

March 19, 1907

APPEAL from District Court, Third District; M. I. Ritchie, Judge.

Action by Alice J. Kirk against Salt Lake City. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Ogden Hites and H. J. Dininny for appellant.

APPELLANT'S POINTS.

Before a suit of this kind can be maintained, a claim must be presented to the city council. The law applicable to this case is to be found in Laws 1903, chap. 19, page 12. A statute requiring the presentation of a claim before suit is mandatory, and presentation is a condition precedent to maintain the action. (Engstrom v. Minneapolis, 78 Minn. 200; Bausher v. St. Paul, 75 N.W. 745; Doyle v. Duluth, 76 N.W. 1029; Trost v Castleton, 79 N.W. 1071 [Mich.]; Maloney v Cook, 21 R. I. 471, 476; Forsyth v. Oswego, 95 N.Y.S. 334; Postal v. Heath, 38 P. 1025.)

Such presentation is mandatory, and cannot be waived by the city council or mayor. (Startling v. Bedford, 62 N.W. 674 [Iowa]; Veazee v. Rockland, 68 Me. 511.)

If a claim is defective it furnishes no basis for an action. (Sowle v. Tomah, supra; Griswold v. Luddington. 74 N.W. 663 [Mich.].)

Such presentation must be alleged in the complaint, and if contradicted proved on the trial. Without such averment the complaint does not state facts sufficient to constitute a cause of action, and is demurrable. (Sowle v. Tomah, 51 N.W. 571; Beggs v. Geneva, 90 N.Y.S. 858.)

Stewart Stewart & Budge for respondent.

RESPONDENT'S POINTS.

Judgment non obstante veredicto was granted at common law, upon motion of the plaintiff only, when the answer confessed the cause of action set up in the complaint, and set up matters in avoidance which, though true, were insufficient in law to constitute a defense; in other words, the courts took the position that a party should not be entitled to the benefit of a verdict when by his own pleadings he confessed that he was not entitled to it in law. (2 Encyc. Plead. & Prac., pp. 912, 913; Berry v. Borden, 7 Blackf. [Ind.], 384; Pomeroy v. Burnett, 8 Blackf. 142; Roberts v. Dame, 11 N.H. 226; Moye v. Petway, 76 N.C. 327; Ward v. Phillips, 89 N.C. 215; Insurance v. Frederick, 58 F. 144.)

The motion was never at common law, and in many jurisdictions is not now to be granted when made by the defendant, the defendant's remedy being a motion in arrest of judgment, which latter motion reaches such facts as are apparent on the face of the record which are not cured by the verdict and which are not dependent on the testimony for their solution. (Quimby v. Boyd, 6 P. [Colo.] 462; Floyd v. Fuel & Iron Co., 50 Pac.--; Bradshaw v. Hedge, 10 Iowa 404; Brown v. Lillie, 6 Nev. 177; Smith v. Powers, 15 N.H. 546; Christian v. Yarborough, 125 N.C. [1899] 72; Buckingham v. McCracken, 2 O. St. 287; Burnham v. Railroad, 17 R. I. 544; Stoddard v. Insurance Co., 75 Vt. 253; Barnes v. Rodgers, 54 S.C. 115; Manning v. City of Orleans, 42 Neb. 712, 60 N.W. 953; McCoy v. Jones, 61 O. St. 119, 55 N.E. 219; Beetz v. Strobel, 6 O. Dec. 143; United States v. Gardner, 133 F. 285; Gibbon v. Bldg. & Loan Ass'n. 43 Nebr. 132, 61 N.W. 126; Stewart v. Amer. Exch. Nat'l Bank, 54 Nebr. 461, 74 N.W. 865.)

In California the statute authorizes the court to enter judgment in favor of the defendant on a special verdict, notwithstanding a general verdict in favor of the plaintiff. (McAulay v. Moody, 60 P. 778.)

In other states, where such a statute is in force, the courts are so averse to interfering with a general verdict that they hold, that the impossibility of reconciling the general verdict with the special verdict must definitely appear before a judgment will be rendered on the special verdict as against the general verdict. (Fruchey v. Eagleson, 43 N.E. 146 [Ind.]; McNabb v. Clipp, 41 N.E. 858 [Ind.]; Gimbel v. Green, 33 N.E. 964 [Ind.]; Vance v. City of Franklin, 30 N.E. 149 [Ind.]; Warner v. Mutual Accident Ass'n, 8 Utah 431.)

Judgment non obstante veredicto was never granted upon the ground that the evidence was insufficient to sustain the verdict. (11 Encyc. Plead. & Prac., 917.)

However, in some states the statute authorizes such a judgment where the evidence is insufficient or where there is a total absence of evidence in support of a material allegation. (Cruikshank v. Insurance Co., 77 N.W. 958 [Minn.]; Welsh v. Railroad, 103 N.W. [N. Dak.] 396; Meehan v. Railroad, 101 N.W. [N. Dak.] 183.)

But it must affirmatively appear that such defect in the proof cannot be supplied at another trial. (Aetna Indemnity Co. v. Shroeder, 95 N.W. [N. Dak.] 436; Meehan v. Railroad, supra; Welsh v. Railroad, supra; Cruikshank v. Insurance Co., supra.)

We call attention again to the fact that no motion for a new trial was made. The appellant, having elected to stand upon its motion for judgment non obstante veredicto, is not now entitled, upon a denial of his motion, to ask alternatively for a new trial. (Cruikshank v. Insurance Co., supra; Bragg v. Railway, 83 N.W. 511 [Minn.]; Lumber Co. v. City of Fargo, 96 N.W. [N. Dak.] 358.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The plaintiff, respondent in this court, brought an action against defendant, appellant here, for personal injuries and damages sustained by her through the negligence of appellant in not keeping a certain street within the corporate limits in a reasonably safe condition for travel. In her complaint she alleges all the necessary averments constituting a cause of action, including the necessary elements of presentation and nonpayment of her claim as required by the act known as "chapter 19, p. 12, Laws of Utah, 1903." The appellant answered, admitting its corporate capacity, and that the street mentioned was within the corporate limits of appellant, denied the negligence and pleaded contributory negligence, and assumed risk on the part of respondent. Upon substantially these issues a trial was had to a jury which returned a verdict in favor of respondent upon which judgment was entered, from which appellant prosecutes this appeal.

There was no motion for a new trial, and the only errors assigned are that the verdict and judgment are contrary to law, and that the court erred in overruling appellant's motion for judgment non obstante veredicto. The record discloses the following proceedings in respect to the errors complained of. After both parties had rested, appellant asked for a directed verdict by offering an instruction to the jury to that effect without assigning any reasons therefor, which the court refused, and submitted the case to the jury upon general instructions applicable to the case as made. As appellant does not complain or assign the action of the court as error in this respect, it needs no further consideration. After the jury had agreed upon their verdict, and returned into court, appellant's counsel moved for judgment non obstante veredicto upon two grounds, viz.: "One is that there has been no evidence offered of any claim having been presented to the city before suit was brought or rejected, or any action taken by the city. Another is that there had been no evidence offered in the case to show notice to the city of the condition of the place stated in the evidence." This motion was by the court overruled. Appellant duly excepted, and, as stated above, assigns the ruling as error. We remark here that while there is also an assignment of error that the judgment and verdict are contrary to law, this, in view of the state of the record, would appear from the evidence only, and as there is no assignment challenging the sufficiency of the evidence and as all the evidence is not presented to this court, a review of the evidence is prevented. The appellant's counsel, with commendable frankness, stated at the hearing that unless the action can be defeated upon the motion for the verdict, a new trial is not desired. This, no doubt, on the ground that counsel are satisfied that the technical proof can be supplied, respecting the presentation and disallowance of the claim, and therefore it would be a mere waste of time and their client's money to retry the case.

The second ground of the motion is also abandoned, but the first is strenuously insisted upon. The only question for decision therefore, is, did the court err in overruling the motion above set forth? It was frankly conceded by counsel for appellant on the hearing, and is likewise conceded in their brief, that at common law a motion non obstante veredicto, was not permitted except in favor of the plaintiff, and then only in a case where no legal defense was presented by the defendant in his plea or answer to the cause of action. It is also conceded by them that in some states the right to make such a motion is given to the defendants by statute, and, unless thus given, it is generally denied, except by some courts who have by their decisions relaxed the common-law rule, and in certain instances have made the motion applicable to both. In all those decisions, however, the right to make the motion is, with one or two exceptions, limited to the pleadings, and not to a case where the evidence must be considered in granting or denying the motion. As this is all conceded, we need not discuss the question here, especially since it is conceded upon all hands that there is no statutory provision in this state recognizing the motion non obstante veredicto. No doubt, in this state, in common with the practice in nearly all of the other states, a motion for judgment on the pleadings is permissible where it appears that there is either no cause of action stated in the complaint, or no defense presented by the answer. This, however, is very far from the question presented. Having recourse to our statutes, we...