Spangler v. Corless

• Decision Date: 08 December 1922
• Docket Number: 3883
• Court: Utah Supreme Court
• Parties: SPANGLER v. CORLESS, Sheriff, et al

211 P. 692

61 Utah 88

SPANGLER v. CORLESS, Sheriff, et al

No. 3883

Supreme Court of Utah

December 8, 1922

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by H. B. Spangler against John S. Corless, Sheriff, and the Miller-Cahoon Company. From a judgment in favor of plaintiff defendants appeal.

AFFIRMED.

D. W Moffat, of Murray, for appellants.

Rich, Rich & Roberts, of Salt Lake City, for respondent.

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

OPINION

WEBER, J.

Plaintiff brought suit in the district court of Salt Lake county against John S. Corless and the Miller-Cahoon Company, a corporation, for the value of an automobile levied upon and sold by John S. Corless, then sheriff of Salt Lake county. It is averred in the complaint that plaintiff owned the automobile at the time of its seizure by defendant Corless, and that plaintiff, a regularly licensed and practicing physician in the state of Utah, used the car in making his professional visits as a physician and surgeon. As an affirmative defense the Miller-Cahoon Company alleged in its answer that in September, 1917, plaintiff purchased from the defendant Corless, sheriff of Salt Lake county, state of Utah, in pursuance of a levy and execution, one Studebaker automobile, 1917, for the sum of $ 200; that said purchase was made in pursuance of an execution duly issued out of the justice's court in and for Murray precinct, county of Salt Lake, state of Utah, issued by A. A. Biorn, justice of the peace, which said execution was given under his hand on the 14th day of August, 1917, due return of which was made under said execution, and which said execution was issued upon a valid and subsisting judgment out of said court in which the plaintiff herein, H. B. Spangler, was the judgment debtor. A separate answer was filed by defendant Corless. The case was tried before a jury, who returned a verdict in favor of plaintiff and against defendants. From the judgment entered upon the verdict defendants appeal.

In its charge to the jury the court said:

"If you believe from a preponderance of the evidence that the automobile in question was in fact used at the time of the levy under the execution herein by the plaintiff, H. B. Spangler, as a physician and surgeon in making his professional visits, then, as a matter of law, said automobile was a vehicle and equipment exempt from execution under the provisions of said statute and was exempt from execution, and any levy upon and sale thereof by defendants would constitute an unlawful conversion of said automobile by said defendants for which plaintiff would be entitled to recover damages."

To this instruction defendants excepted, and now assign it as error on appeal, so that the vital question in this case is whether an automobile used by a physician or surgeon in making his professional visits is exempt from execution.

The statute (Comp. Laws 1917, § 6925, subd. 6) provides that--

"Two oxen, two horses, or two mules, and their harness; and a cart and wagon; one dray or truck, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his living; and one horse, with vehicle and harness, or other equipments, used by a physician, surgeon, or minister of the gospel, in making his professional visits," shall be and are exempt from execution.

Appellants' counsel cites Crown Laundry & Cleaning Co. v Cameron, 39 Cal.App. 617, 179 P. 525, decided by the District Court of Appeals, Second District, California, in which the following language of the statute of that state specifying what property in certain cases shall be exempt from...