*1 187 P.2d 622 299 courts state L.Ed. 934. The holding practically unanimous in Hensley COTTRELL, J. Plaintiff accused an detention of where is a Appellant, against process, wrong legal under his v. condoned be him is not to holding state corpora- COMPANY, GRAND UNION TEA committed wrong because of violence or tion, Pope, and C. E. Defendants and by individuals against person Respondents. even jurisdiction, brought him into No. 8396. subject to individuals
though such Supreme Court of Utah. unlawful liability for their civil criminal July 16, 1956. A.L.R. annotated at acts. cases See n 947ff. limited finds view The of Kan the state
expression in cases used
sas, held that violence it is where another court from persons
bring before
n state convict power to court’s voids 262, 18 Simmons, 39 Kan.
them, State view, the this however, under even
P. a situa between distinguishes court
Kansas irreg and one violence
tion of unlawful proceedings, State in extradition
ularities Wellman, 102 Kan. Ann.Cas.1918D, 1006.
L.R.A.1918D, petitioners permitted the court petition their the fact despite hearing effect matters present corpus pro- habeas under discharge
their held they were found
ceedings authority. proper process valid
under discharged. properly writ
Affirmed. HENRIOD,
CROCKETT, WADE and
WORTHEN, JJ., concur.
vised the filing complaint, would be a defense to this action.2 It anis defense,3 affirmative and the burden rested upon the defendants to establish it preponderance of the evidence. point inquiry critical this: Considering evidence, all of the could rea- sonable fairly they minds say that were not preponderance convinced evi- dence that the defendants made a full and King, Dwight L. Hughes, Robert W. truthful disclosure of the material facts to City, appellant. Salt Lake county attorney? Watson, City, for re- A. Lake W. Salt Plaintiff Cottrell worked as a salesman spondents. on commission for the defendant Tea Com- pany, and man- defendant was its CROCKETT, Justice. ager. There shortage was a for malicious Hensley sued Cottrell J. *3 plaintiff turned in to the defendant com- prior criminal prosecution, arising out of a pany. Fives, A Mr. agent Bernard for W. charged him action defendants wherein company, defendants’ bonding was called embezzlement,1 which felony of with the and conducted an investigation of Mr. Cot- upon motion of was dismissed before trell’s account. There disagreement was interroga- A answered the State. to the owing: thought amount Mr. Cottrell to a verdict favorable and rendered tories only it was (about a net of a few dollars granted de- plaintiff. The trial court whereas, $16), Mr. Fives insisted that it judgment notwith- fendants’ motion for considerably was (something more over verdict, plaintiff standing the from which $100). Mr. Fives went to the Cottrell appeals. go home to over the matter. The latter re- quested that an ruling, opportunity The basis of the trial court’s given go be to here, position wife, maintain over the and the defendants accounts with his who is accountant, they made a full the an disclosure of who was not at is home at attorney, prosecuting opportunity who ad the time. This to was facts not af- 208, 309; 76-17-1, 76-17-11, Canning, U.C.A.1953 241 v. 1. McKenzie Sections $50). (felony 42 1172. Utah 131 P. if over Eaton, Metzker, 95 P.2d 3. Lowther v. Utah 69 Idaho Uhr Frost, 925; Thomas v. 83 Utah P.2d 604. Linton, 66 Utah Sweatman upon the claim- that the which stated occurrences it was the conversation In forded. place out- his ed full is based took good disclosure spent a deal that Mr. Fives company plaintiff’s and further- presence, side the employees “nailing time more, were are now testified Company] wall.” carried on and Tea to [defendant Cottrell, by are plaintiff, to interests adverse witnesses whose “Mr. And he told you.” it would example of to him. make an Under such circumstances they going to are dis- Pope contrary justice Fives be fore- Thereafter, and Mr. to reason Mr. plaintiff at- disputing close their version with the the matter cussed so-called, “letter happened them a that their torney, gave ground what on the they to the “undisputed.” went At dis- probable cause” evidence was office, mat- presented the attorney’s county advantage being absent when events At- Deputy County plaintiff Taylor, place, open Hal took to Mr. course ter by which expose story torney, pursuant in their was weaknesses felony issued. plaintiff cross examination or evidence charging uncertainties, show or other inconsistencies defendants’ contention The upon cast doubt circumstances which would truthful disclosure they a full and made declarations and truthfulness of their upon the founda Taylor rests Mr. facts to support prosecution his contention that the Pope and Mr. testimony of tion of personal motivated animus and corroborates Fives, vindictiveness, justifica- legal rather than here, it the facts Under particulars. some inquiry pursued, tion. be is wheth- prate defendants meaningless seems evidence, plaintiff er under the succeeded dispute” their “no evidence that there in casting upon sufficient doubt the defend- appreci they did. It is what as to claims story ants’ reasonable minds could circumstances, un usual under ated that fairly rej ect it. testimony of wit credible controverted arbitrarily disregarded nesses of Mr. are facts.4 But there trier of the Mr. Fives which the defense of full appli why such rule is not reasons cogent primarily disclosure is based is obviously here. cable high degree suffused with a of self-interest. *4 further, dispute And from the analysis realistic of the approaching a which de In account, veloped over the prime situation, significance it is fact present (Plaintiff by Thurston, 666 field g., bound v. 38 Utah Leavitt E. uncontra- 4. 77; Blair, dicted of witnesses 63 Utah Karren P. introduced 113 him). by Compare: Ogden Kent v. 1094. P. 225 Co., Ry. Utah I.&L. Mr. Cottrell was leaving the company [******] prosecuted criminally,
was be it would not “Q. Taylor, if Mr. going say too far to inference of an that an you told that the cash was not turned imus is fairly be drawn. Self-interest in, but the cash deposited in the uniformly recognized as a factor which bank account of salesman, then a discounting may evaluating considered check drawn for the difference be- mony,5 amounts, it is not limited tween the as shown on the testi yellow pecuniary sheet, direct result. The stake to be credited to his ac- vindicating count, may interest which one and the amount he owed Grand important Union, his own fact conduct also an would that fact have had a may or.6 Such an im bearing your interest well have on decision?
by the
portant
mony.
consciously, upon
defendants have such
Each
bearing,
subconsciously
both
witnesses relied
memory and
motivation.
as well as
testi
“Q. They
“A.
[*]
I would think it would.
v
never did tell
[*]
[*]
[*]
you
that?
“A.
I
they
don’t recall that
did.
I
plaintiff’s
witnesses for
one
don’t recall
way
one
or the other.”
they
any degree
detach-
whom
can claim
The evidence shows that
inwas
fact
Deputy County At-
Taylor,
ment is
practice
for salesmen
to collect
torney.
in-
It is to be noted that
routes,
on their
per
from which they were
definite in his recollections both as to
mitted to
expense,
deduct items of
includ
made to him
time certain disclosures were
ing
they
the amount
salary
had earned as
fact,
they
one
and as
what
were.
In
from the
as
by
shown
a voucher
aspect
testimony, much less than
of his
(yellow sheet)
the company furnished
demonstrating that full disclosure had
them, and remit the remainder to the com
him,
indicates to
made to
pany. They deposited funds in their own
following
answers to the
shown
bank accounts and remitted to the com
by defendants’ own counsel:
put
questions
pany by'
procedure
check. This was the
you
they inform
he was
“Q. Did
followed
Mr. Cottrell.
It was also1
them, the actual cash he col-
in to
turn
prior
shown
on
occasions he had re
route, less those deduc-
lected on
mitted checks for different amounts than
A.
tions?
Yes.
figure owing
the exact
to the company,
944;
Utah,
Wall, Utah,
fact
trier
discount
testi
257 P.2d
That
Nichol v.
mony
self-interested
witness see Mc
prosecution to enforce demands the defendant’s witnesses and the un of Cottrell, expressly denounced which is unsatisfactory aspects other certainties and by our statute.9 Co., 76-19-2, R. Line R. Utah Short Section U.C.A.1953. 9. P. 567. Utah, Co., R. 10. v. Union Pac. R. Stickle 11. 120 Utah Oregon S67, Newton 251 P.2d supra. 12. See footnote 19á discussed, complainants have ad- evidence, interests hereinabove
of their plaintiff’s, jury, nothing verse to but there is ample there is basis complainants reasonably, indicating refuse the record fairly acting prostituted a by testimony “ob- had been themselves and find that believe all viously a self- high degree suffused with full, disclosure fair and truthful interest.” The same self-interest about Taylor. facts the material opinion speaks being which the a main have Therefore, should not trial court in evaluating discounting factor testi- determination in effect overruled their mony, may well the factor such conclusion his own substituted jury against this case that led the to hold aas established had been full disclosure question of irrespective any defendants of law. matter full defendants disclosure. Dislike for instructions case is remanded too. with it something have had do favor the verdict of reinstate pertinent question here judgment plaintiff and enter whether, before signing appellant. thereon. Costs embezzlement, plaintiff against McDONOUGH, J., and C. I. Roger respondents ma- made full disclosure WADE, J., concur. A. Lester deputy possession, facts in terial their to a County Attorney, who, filing after *7 WORTHEN, in result. J., concurs complaint, which was moved its dismissal granted. (dissenting). HENRIOD, Justice I am CROCKETT convinced that the trial Mr. dissent. court did I Justice that incidents err in the facts not its much of conclusion that was no makes in- respondents were relating disclosure evidence that had not made a testified pres- disclosure, plaintiff’s plaintiff full occurring outside since adduced no cidents by witnesses evidence to ence, testified controvert testimony and the were of plaintiff, deputy County were adverse to both the Attorney interests whose and the “obviously suf- testimony respondents key exhibits, that the whose two and a self-interest”, degree high bond, a of and contract a deposited with were fused County lend too much that should not Attorney prior we the implying to his filing of evidence, though complaint. undis- the such No credence one denied that such unlikely highly It is that documents in the com- were the puted. hands of County the Attorney take witnesses would the plaining accused before he complaint. filed the It County to see impossible with them the along Attor- to determine how the jury, on equally improbable verdicts, it is ney, special that such found otherwise, except ver- lor’s question the written answer mistake, to a the effect since possibly by “yes” to that if answering he plaintiff been in advised that dict indicates ^that could pre- put the have bank money find in own question, “Do from his you account company, the de- checked it to the ponderance of the evidence the crim- would such any issuance of to the have prior fendants information made * * * Taylor failed to disclose difference. thought Mr. said he inal con- (a) the following: have made Difficul- Taylor a to Mr. difference. Answer (contract). Exhibit 1 ty of tents with the opinion’s main of treatment * * * * * * (c) (b) “no.” “yes” or that testimony is that fact not it assumes a (bond). Exhibit of The contents (d) shown in record, plaintiff —that writ- “no,” jury had or “yes” Answer paid by the difference to the drawn lines thereafter and had in “no” ten check. The record he no such shows did “yes.” substituted “no” through the thing, but pay that he the com- failed “no” to changes from made pany check or course otherwise. Of in six out “no” “yes” to “yes” Taylor quite was not but correct re- subdivisions the lettered of eight judicious by necessary in im- pointing out the inter- referred to exhibits lating plication answer, payment that had supplied). (Parentheses rogatory. made there could have been no basis the jury possibly I see how can Nor complaint. of a issuance “yes” question: answered to the question and answer have shown a ** * that you defendants “Do find payment, a failure to disclose custom produce to furnish or any failed informa- it did show a failure to disclose but Tay- requested by Mr. or tion documents payment. actual material fact of lack * * only evidence when the lor showing had been disclosed already Facts question to with having case do such this payment had not been such custom he was the followed, plaintiff had written since documents request information and the company, paid the in failing check and re- everything and that question, payment, any custom of whether to follow the com- furnished before quested was cash, kept having and his check filed, together with testi- plaint gave certainly reasonable cause *8 supply the that he mony of Mr. he had converted the company’s believe complaint filed. before documents appears Hence, question that the cash. answer, best, opin- main at could have only peg which and inter- the. attempt Tay- preted showing its failure hang hat is Mr. a ion can disclose jealously and be guarded courts,” immaterial something quite that was —the- been right expect importance dispossess evidence that a court will where of no jury haywire, a that has gone actual conversion an produced —as practices case, court in this in my opinion, quite talk about Irrespective of funds. paid salesmen, properly did. reflected answer question and over. facts, and pertinent failure to disclose
no in the record nothing else any point failure. such of a fashioning opinion’s
The main P.2d facts relationship debtor-creditor pointing factors to strain here seems Arentz, MEAGHER, Jr., Mary N. J. Alice un- relationship arrive principal-agent a Ivers, Margaret Frances Katherine C. relation, Price, and Meagher T. different N. J. Katherine warrantedly at a and Respondents Meagher, wife, Plaintiffs, in our reasoning squares hardly Appellants Separate Appeal, on Transp. Co. v. Lake of Salt recent case Review, 5 Utah 2d Board of EQUITY corporation, COMPANY, OIL a Company, corporation, Weber T. Oil Joe many times how as to The discussion Juhan, Stock, Paul Per and All Unknown subject disagree- any sons in the claim interest saw complainants action, Defendants, Appel matter of this unimportant since seems dates as to ment Respondents Separate Appeal. lants and on Attorney, County including the everyone, No. 8483. requested documents all agrees Supreme Court of Utah. supplied before necessary were July 5, 1956. issued. gener- complimentary to the
I subscribe point system, but about
alization fundamental “right so
out guard- jealously “should which
sacred” courts,” should be made an by
ed for abuse because of those
instrument phrases. The other citizen
high-sounding too, “right is also rights so
has sacred” that also “should
fundamental