Tjas v. Proctor, 14788
| Decision Date | 02 February 1979 |
| Docket Number | No. 14788,14788 |
| Citation | 591 P.2d 438 |
| Parties | Sydney A. TJAS and Charles P. TJAS, Plaintiffs and Appellants, v. Kenneth D. PROCTOR and Roma Proctor, his wife, Defendants and Respondents. |
| Court | Utah Supreme Court |
James A. McIntosh of McMurray, McIntosh, Butler & Nielsen, Salt Lake City, for plaintiffs and appellants.
F. Robert Bayle, Salt Lake City, for defendants and respondents.
Plaintiffs Sydney A. Tjas and Charles P. Tjas brought this action for injuries sustained by Sydney A. Tjas allegedly suffered at the residence of the defendants when a porch ornamental and decorative upright came loose as Mrs. Tjas took hold of this iron upright on leaving the Proctor residence. From a jury verdict, No Cause For Action (6 to 2) plaintiff appeals.
The facts presented to the jury are that the defendant, Roma Proctor, was an Avon Lady selling and delivering products door-to-door. She did not sell or display products in her home but delivered the requested products to her customers at their homes. Plaintiff Mrs. Tjas had ordered some products from Mrs. Proctor but because Mrs. Tjas was unable to make payment for the products when they were received by Mrs. Proctor, Mrs. Proctor kept the products in her home, advised Mrs. Tjas that she had the products and that she would make delivery to Mrs. Tjas when payment could be made. The conversation concerning the availability of the products was had by telephone and there is a dispute in the facts as to whether or not plaintiff, Mrs. Tjas, had been requested to pick the products up at the home of defendant Mrs. Proctor.
Plaintiff Mrs. Tjas arrived at the defendant's home according to the testimony of the defendant unexpectedly and uninvited, picked up the products which defendant had in her home and on leaving the home took hold of an ornamental iron decorative member which ran from the floor of the porch to the ceiling of the porch, and as she moved off the porch this iron decoration came loose and allegedly injured Mrs. Tjas.
There is substantial conflict in the medical testimony as to the extent, permanency and nature of the injuries sustained by plaintiff, Mrs. Tjas. Mr. Proctor, co-defendant, testified that on inquiry after the fall Mrs. Tjas stated that she had not been injured.
During the course of the trial, the trial court dismissed the Complaint against the defendant Kenneth D. Proctor; dismissed the Complaint of co-plaintiff Charles P. Tjas for loss of consortium and on request of the jury, in a not too articulate manner, explained the difference between two instructions that one of the jurors thought were inconsistent but in finality the court advised the jurors to read the instructions "together" and if they were still troubled a further instruction would be given. The jury did not return for further instructions and returned the No Cause verdict after due deliberation.
At the time the jury requested additional explanation plaintiff's counsel was absent from the court building but had left instruction with the clerk to be called in the event of the return of the jury though it appears that the plaintiffs themselves were present during this period.
Appellants raise four general categories alleging error on the part of the trial court. Raising a plethora of issues on the question of fair trial, appellants complain that the trial court failed to give adequate instructions, did not protect the plaintiff (appellant) from harm or prejudice which might have influenced the jury in its handling of Mrs. Proctor's medical condition, failed to allow particular argument relating to per diem loss and did not allow Mr. Tjas to plea for loss of consortium. The record contains instructions given by the court which protected appellants' theory for recovery and the appellants therefore cannot now complain that the instructions were inadequate. The court was sensitive to the nature of Mrs. Proctor's illness and to avoid the kind of problem herein raised by appellants referred to it when required as a "medical problem" rather than to indicate that the defendant had a kidney disease and required extensive use of dialysis treatment to maintain her life support requirements. The facts are that Mrs. Proctor was using the dialysis machine when Mrs. Tjas came to pick up her Avon supplies and because of the appellant's suggestion, the court properly handled this question very delicately so as to avoid any improper inferences.
Additionally, as part of the claim for failure to provide a fair trial, appellants contend that the trial court during voir dire failed to ask the jurors questions which he requested. These questions particularly as they raise the issue of insurance are and were properly refused as this Court has previously indicated:
That the question of insurance is immaterial and should not be injected into the trial; and it is the duty of both counsel and the court to guard against it. 1
Plaintiffs (appellants) here requested the replaying of a tape recording but failed to lay a proper foundation for the introduction of that evidence and without a proper foundation the trial court properly excluded this replaying. The determination of adequate foundation is solely within the discretion of the trial court and herein not abused.
An attempt was made to argue the loss of Mrs. Tjas on a per diem basis and the trial court referring to the case law in this jurisdiction properly held that a fair trial was not being denied and the per diem argument rejection was proper. 2
By legislative determination and supporting case law a wife is permitted to recover for loss of service to her family as a result of her injuries and this loss, sometimes referred to as consortium, is properly part of the wife's claim only. The statute clearly states:
A wife may receive the wages for her personal labor, maintain an action therefor in her own name . . . 3
Utah cases and as those cases have been summarized and followed in Federal Court conclude that a husband may not maintain a loss of consortium action for the...
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...found any constitutional problem with the Act. See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1286-87 (Utah 1987); Tjas v. Proctor, 591 P.2d 438 (Utah 1979). ¶137 I further note that legal scholars writing on open courts provisions have observed the problems of Berry 's approach and......
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