Mehr v. Child

• Decision Date: 27 October 1936
• Docket Number: 5371
• Citation: 61 P.2d 624,90 Utah 348
• Court: Utah Supreme Court
• Parties: MEHR v. CHILD et al

61 P.2d 624

90 Utah 348

MEHR v. CHILD et al

No. 5371

Supreme Court of Utah

October 27, 1936

Appeal from District Court, Second District, Weber County; George S Barker, Judge.

Action by Hilda Mehr against Harrison B. Child and others. From an adverse judgment, the defendants appeal.

REVERSED and REMANDED, with directions.

Joseph Chez, of Salt Lake City, for appellants.

Samuel C. Powell, of Ogden, and H. L. Mulliner and Chris Mathison both of Salt Lake City, for respondent.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

ELIAS HANSEN, Chief Justice.

Defendants Harrison B. Child and Ivy B. Child prosecute this appeal from a judgment rendered against them in favor of the plaintiff. The action was dismissed as to defendant Glenna Mary Child Shupe. The judgment appealed from is for personal injuries sustained by plaintiff in an automobile accident. By their assignment of errors defendants seek a reversal of the judgment because, as they claim: (1) The judgment is contrary to the evidence; and (2) the court below misdirected the jury as to the law applicable to the evidence.

The complaint is founded upon the alleged negligence of the defendant Alberta Child, the daughter, an alleged servant and agent of the appellants, in driving an automobile on the wrong side of a public highway near Ogden, Utah, resulting in a collision in which plaintiff received the injuries complained of. The defendants answered, denying negligence on their part, denied that at the time complained of Alberta Child was their agent or servant; and alleged that the collision in which plaintiff was injured was caused by her own negligence. The trial resulted in a verdict for plaintiff upon which the judgment appealed from was rendered.

The evidence, without conflict, shows these facts: At the time of the collision in question Alberta Child, age 16 years, the daughter of appellants, was driving her father's automobile, a Dodge sedan, in an easterly direction along a hard-surfaced highway which extends from Salt Lake City to Ogden, Utah. Miss Child was accompanied by a girl friend. Both girls were riding in the front seat. The collision occurred at a point between 600 and 800 feet west of the viaduct which extends over Weber river and the railroad tracks just south of the city of Ogden. There were no turns in the road at or near where the collision occurred. It occurred at about 1 o'clock p.m. on a clear day in July. Just before the accident plaintiff and her son, age 10 years, were riding in the front seat with a Mr. Kaufman in an automobile owned and driven by Mr. Kaufman in a westerly direction along the highway. The two automobiles, one driven by Miss Child and the other driven by Mr. Kaufman, collided almost head on. Plaintiff was quite seriously injured in the collision.

Plaintiff and her witnesses testified that the collision occurred in this manner: That the Kaufman automobile was proceeding westward at a speed of about 25 miles per hour on the right-hand or northerly side of the highway. About four car lengths or 40 feet in front of the Kaufman automobile was a Studebaker automobile proceeding in the same direction at about the same rate of speed. The Studebaker automobile was owned by one George M. Thurston, who with his family, was riding in his automobile. The son of Mr. Thurston was driving the Studebaker automobile. As the Child automobile and the Thurston automobile approached each other, Mr. Thurston noticed that the Child automobile was being driven easterly on the north side of the highway. He also noticed that there were two girls riding in the front seat of the Child automobile. They were apparently laughing and talking and unconscious of the fact that they were driving on the wrong side of the road; that as the two automobiles approached nearer each other Mr. Thurston sounded the horn of his automobile and waved his hand in an attempt to attract the attention of the girls in the approaching Child automobile, but, being unable to attract their attention and seeing that there was imminent danger of a collision, Mr. Thurston's son suddenly turned to his left from the north to the south side of the road just in time to avoid a collision; that Mr. Kaufman saw the Thurston automobile suddenly turn to the left, and then for the first time saw the Child automobile approaching on the north side of the road directly in front of the Kaufman automobile; that Mr. Kaufman upon seeing the oncoming Child automobile slowed down to a speed of not to exceed 15 miles per hour; that, when Mr. Kaufman saw that the Child automobile was not going to move over on to the south side of the road he, in order to avoid a head-on collision, turned his automobile to the left; that he was unable to get far enough to the left to avoid a collision. No claim was made that the Child automobile was being driven at an unlawful rate of speed. Plaintiff also offered evidence as to the nature of her injuries and expenses she had been put to by way of medical attention and hospitalization. No claim is made, or could well be made, that the amount awarded plaintiff by the jury is excessive if plaintiff is entitled to recover. That phase of the case is therefore not before us for review.

The version given by Alberta Child and her girl friend, both of whom testified on behalf of defendant as to how the accident occurred, is as follows: That for some time before the Child automobile reached the place of the accident Miss Child was driving east behind a slow-moving Ford truck; that a short time before she reached the place of the accident she attempted to pass the Ford truck, and, in order to do so, she drove on to the north side of the road; that, when she was about abreast of the Ford truck, the driver thereof put out his hand indicating that he was going to turn north across the road; that thereupon Miss Child slowed down to let the Ford truck pass in front of her; that before she was able to get back on the south side of the road the Thurston automobile passed her on the south side and immediately thereafter, about three seconds, the Child automobile and the Kaufman automobile collided. Miss Child testified that she did not see either the Thurston or the Kaufman automobile at the time she drove on to the north side of the road in an attempt to pass the Ford truck, and also that she did not see either the Thurston or the Kaufman automobile until at the time of the collision. Defendant offered evidence tending to show that both the Thurston and the Kaufman automobiles were traveling at a speed in excess of 40 miles an hour immediately before the collision. Plaintiff's witnesses testified that at no time just prior to the accident was there a Ford truck in front of the Child automobile.

Touching the question of whether or not Alberta Child was acting as the agent or servant of appellants at the time in question, plaintiff and Mrs. Robinson each testified that during the spring of the year following the date of the accident they went to the home of appellants; that at that time the defendants said that on the occasion in question their daughter Alberta had taken the automobile not only by and with their consent but that they sent her to Ogden to get another daughter who was working in a beauty parlor. The defendants denied having made any such statement to plaintiff and Mrs. Robinson, and further testified that Alberta had taken her father's automobile on that day without their knowledge or consent and against their directions to her not to take the same. Alberta Child testified that she took the automobile without her parents' consent and that she was going into Ogden for the purpose of getting a marcel. Evidence was also offered on behalf of the defendants that their daughter who was a marcellist and who had formerly worked at that occupation in Ogden was in Boise, Idaho, at the time of the accident.

As will be seen from the foregoing summary, there was ample evidence to support a finding that Alberta Child was negligent as charged in the complaint and that such negligence on her part was the sole proximate cause of the collision and resulting injury to plaintiff. The only questions of merit presented on this appeal are: (1) Does the evidence support a finding that Alberta Child was the agent or servant of appellants at the time of the collision? and (2) Were the instructions to the jury touching that phase of the case open to the objections urged by appellants?

It is earnestly urged by appellants that the first question must, as a matter of law, be answered in the negative. The law applicable to admissions is thus stated in 3 Jones Commentaries on Evidence (2d Ed.) p. 1973, § 1072:

"When an admission is clearly proved and shown to have been made with deliberation, it is not necessarily weak evidence, nor does it require corroboration; on the contrary, when admissions are so proved, they may have great inherent force as evidence. To the extent of the subject-matter of the admission, it makes out a prima facie case and dispenses with other proof of the fact admitted until rebutted. And a finding of fact, resting solely upon an extrajudicial admission, is not, for that reason, unsupported by substantial evidence."

Numerous cases cited in the footnote support the text. The law announced in the foregoing text is cited and followed by this court in the case of Peterson v. Richards 73 Utah 59, 272 P. 229. The following cases cited in respondent's brief are to the same effect: Kolensky v. DeFrancesco, 102...