Nichols v. Oregon Short Line R. Co.

• Decision Date: 10 December 1904
• Docket Number: 1568
• Court: Utah Supreme Court
• Parties: NANCY J. NICHOLS, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

78 P. 866

28 Utah 319

NANCY J. NICHOLS, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1568

Supreme Court of Utah

December 10, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action to recover damages for personal injuries. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

P. L Williams, Esq., and George H. Smith, Esq., for appellant.

In the case at bar, defendant objected to Judge Tanner, as one of the judges of the city court of Salt Lake, taking part as an attorney for plaintiff in the trial of the case. It is true that there is no statute in this state prohibiting a judge of any of the district courts or of the city courts from practicing law as an attorney or trying cases in any of the courts of the State. We contend however, that independent of such a prohibitory statute the common law in conformity with a sound public policy, exacts that when an attorney at law is elevated to the bench of any of the superior courts as the judge thereof, his right to practice law as an attorney counselor or advocate in any of the courts of the State, becomes suspended and continues so long as he occupies the official position. Seymour v. Ellison, 2 Cowan (N.Y.) 13; Habby v. Smith, 1 Cowan 588; Wright v. Boone, 2 Green (Iowa) 458; Smith v. Lovell, 2 Mont. 332; Evans v. Funk, 151 Ill. 650; Perry v. Bush (Fla. 1903), 35 So. 225.

"A party has a right upon cross-examination to draw out anything which would tend to contradict, weaken, modify or explain the evidence given by the witness on his direct examination, or any inference that may result from it, tending in any degree to support the opposite side of the case." Whippel v. Preece, 24 Utah 364; Short v. Hofman, 79 Cal. 404; McFadden v. Railway, 87 Cal. 464.

Messrs. King, Burton & King and H. S. Tanner, Esq., for respondent.

The first point discussed by counsel is based upon the alleged error, that the trial court overruled defendant's objection to the appearance of H. S. Tanner, as one of the attorneys for plaintiff. At the time of the trial, Mr. Tanner was one of the city judges of Salt Lake City, and it is contended that by reason of that fact, he could not participate in the trial as one of the attorneys. As we understand counsel's position, it is that if Mr. Tanner could not act as one of the attorneys at the trial, the judgment which was obtained must be so tainted as to be voidable if not void.

We respectfully insist that counsel have argued from an erroneous premise in assuming that the city courts of Salt Lake City are courts of general jurisdiction, and we think that the cases cited are not in point and furnish no authority in support of counsel's contention.

The Constitution of Utah vests the judicial power of the State in the Senate sitting as a court of impeachment, in the Supreme Court, district courts, justice of the peace courts, and such other courts inferior to the Supreme Court as may be established by law. Art. 8, sec. 1, Rev. St. of Utah 1898, p. 50. Pursuant to this authority, district courts were created, and general jurisdiction, in all that those words imply, was conferred upon them. They became and are courts of general jurisdiction. Justice of the peace courts were also created: and by the act of March 22, 1901, (Session Laws of Utah 1901, page 110) there was created within cities of the first class, courts to be known as "City Courts," and also the office of city judge.

We contend that both city and justice of the peace courts, are courts of limited or special jurisdiction. The jurisdiction of the latter courts is limited to three hundred dollars in civil matters, and to the trial of misdemeanors in criminal matters, while the jurisdiction of the former courts in civil matters is limited to cases where the demand is less than five hundred dollars. They also have exclusive original jurisdiction of cases arising in or by reason of the violation of any city ordinances, and the same powers and jurisdiction as justices of the peace in all other criminal actions. The judges of the city courts are magistrates having only the powers and jurisdiction of justices of the peace when sitting as magistrates. The law creating the city courts also limits their jurisdiction in the same manner as justices' courts are limited, so that no evidence can be given upon questions involving "the title or possession of real property, or which involves the legality of any tax, impost, toll or municipal fine, nor can any issue presenting such questions be tried by such court."

In the matter of appeals, the statute provides that from all final judgments of a city court an appeal may be taken to the district court. "in the manner and with like effect as is now, or may be provided by law for appeals from justice's courts in similar cases;" and where the appeal is taken to the district court and the judgment of the latter court upon the appeal "does not exceed one hundred dollars exclusive of costs," then such judgment shall be final. Session Laws of Utah 1901, pages 113, 114.

It seems clear to us from the provisions of the act establishing city courts, that they are simply courts of limited and special jurisdiction. They are only a grade higher than the justice's courts. Their jurisdiction is limited, and the subjects over which they may assume jurisdiction are limited. They have no jurisdiction over the trial of felonies, nor over questions involving the title to real estate, nor over controversies where the amount involved is five hundred dollars or more.

A city judge occupies substantially the same position as a justice of the peace. Justices of the peace may practice in any court of the State except a justice's court. Rev. St. of Utah 1898, sec. 4155. If a justice of the peace may practice, then a judge of the city court may also practice, at least, in courts of the State higher than his own.

"Ordinarily a justice of the peace is not disqualified to appear as an attorney in other courts, although it is manifestly improper for him to appear in a case on appeal from his court." 18 Am. and Eng Enc. of Law (2d. Ed.), 43.

In the section just quoted from, it is stated that in some States, by statute justices of the peace are declared to be incompetent to appear as attorneys or counsel upon the trial of an appeal from a justices court. Where two justices hold court in the same city, but have seperate offices and dockets, one is not disqualified to act as an attorney in a cause appealed from the other justice. Grady v. Sullivan, 112 Mich. 458.

It would seem from the above statements that unless prohibited by statute, that is in the absence of legislation prohibiting justices from practicing, they may do so.

It is next contended by appellant that the court erred in permitting witnesses to testify that plaintiff's memory had been impaired as the result of an injury. The complaint alleges that by reason of the collision, plaintiff was "seriously injured, bruised and wounded, etc.... So that she had a miscarriage, and has otherwise become sick, sore and disabled physically, mentally, internally and permanently," etc.

It will thus be seen that the plaintiff claims as one of the elements of damage injury to her mind, that is, an impairment of her mental powers. Counsel's position, as we read their brief, is that there can be no recovery for impairment of the memory, even though it is the result of a physical injury.

This position seems to us unsound. Can there be any doubt that if the plaintiff, at the time of the collision, had been so thrown as to produce a fracture of the skull and her brain has been so injured as to affect her memory, she would have had no cause of action for the injury to the brain? We think the authorities are unanimous that in such a cause, she could have recovered, not only for the injury to the skull, and the body generally, and the pain and suffering resulting therefrom, but also for the injury to the mind. What difference is there in principle where the memory fails by reason of a blow upon the head, or where it is impaired as a result of being thrown violently to the floor, thereby producing a shock to the entire system.

This question has been considered in the case of Croco v. O. S. L. R. R. Co., 18 Utah 311. In that case, plaintiff, under objection, was permitted to testify, "that his memory was poorer than it was before the injury." 3 Suth., Dam. (2nd Ed.), 2261; Chicago v. McLean, 133 Ill. 148; Watson, Dam. Per. Inj., sec. 473; Wade v. Leroy, 20 How. 34; Ford v. Warner Co., 1 Marv. (Del.), 88; Railroad v. Read, 37 Ill. 485; Railway v. Braddeley, 54 Ill. 19; Bellou v. Farnerm, 11 Allen (Mass.), 73; Railway v. Silliphant, 70 Tex. 623; Wallace v. Railroad Co., 104 N.C. 442; Railroad Co. v. Hecht, 115 Ind. 444; Kennedy v. Railroad Co., 7 N.Y.S. 221; McLean v. Chicago, 133 Ill. 148; Keyser v. Railway Co., 66 Mich. 390: Holland v. Railroad Co., 18 Ill.App. 418.

"The authorities are unanimous that mental injury may constitute an element of damages upon the theory that a person's mind is no less a part of his person than his body." 8 Am. & Eng. Enc. of Law, 658, and cases cited; Giblin v. McIntyre, 2 Utah 348.

BARTCH, J. BASKIN, C. J., and McCARTY., concur.

OPINION

BARTCH, J.

--The plaintiff brought this action to recover damages for personal injuries alleged to have been received by her through the negligence of the defendant while traveling on its train. This is the second appeal herein to this court. On the former occasion the judgment was reversed, and the cause remanded for a new trial. The case is reported in 25 Utah 240, 70 P. 996. The facts are there stated sufficiently to answer the purposes of this decision.

The appellant...