*1 taxable, were statute thorized strictly.1 must be construed statutes
such authority in statutory am unaware expense deposi- taxing for state according costs, expense, and such
tions customarily was practice, former inescapable It seems as costs. taxable taking depo- expense
therefore, that the statute,
sitions, unless authorized discretion of within the as costs
taxable
trial court.
WORTHEN, being disqualified, J., does herein. participate
Howard
v. Handy, Appellant. appellant. VARNER, George Ogden, B. for Defendant and William No. 8377. Brann, Ogden, Richard W. Amicus Curiae, respondent. Supreme of Utah. Court 29, Nov.
McDonough,
justice.
chief
Defendant, upon a counterclaim tried to
judgment
plain-
against
recovered
collision;
damage
truck in
tiff
held that
lower
inasmuch as
proved the
had not
amount of his
loss
93,
Collings,
Utah
v.
1. Checketts
1393; Openshaw
950, A.L.R
1 P.2d
Openshaw,
titled
to nominal
of the court
$5.
self-interest,
from
appeals, alleging
vagueness,-
fendant
facts
improbability
and the
inadequate.
awarded
inherent in his
testi-
mony that he was unable to obtain the
apparently
There is
no
as to the
*2
money necessary
repair
his truck or rent
compensable
appellant
fact that
sustained a
mitigate damages
another to
and continue a
injury.
that the truck
Witnesses testified
profitable business which had netted him
“damaged,”
was “wrecked”'
that “a
nearly $1,000 per
prior
month for the
six
underneath,
back
the fend-
wheel was bent
Certainly
court,
months.
the
as trier
broken,”
ripped,
bumper
er was
was
fact,
justified
in
accepting
not
appellant
his
in
own behalf that
testified
true,
uncontradicted,
as
though
his evidence
bumper,
damage included the
front
front
as to his damages for loss of
use of
ve-
rim,
fender,
axle,
wheel and tire and
front
However,
above,
hicle.
as stated
there is
spring,
steering
grill,
front
frame and
rod.
nothing
the record refuting the facts of
Respondent,
present
who was
at
acci-
physical damage which the trial court de-
contradictory
dent,
proffered
neither
evi-
termined
respondent’s negli-
was due to
attempted impeachment
nor
of this
dence
gence. It
province
is not within our
to de-
evidence,
accept
thus we
the extent of
just
compen-
termine
what amount would
However,
damage
true.
delineated as
appellant
injury;
sate
for his
helpful
appellant
very
to the íower
whether,
to be decided is
under the state of
offering
evidence as to
proof, appellant was entitled to more than
compensate
money
would
him for
of
damages
nominal
as a matter of law.
testified,
owner of the
loss:
as
vehi-
he
cle,
$1,200
principle
that the truck was worth
before
The fundamental
damages
of
is
accident;
after
injured party
position
the accident
restore the
to the
$700
experienced
testified,
an
as
automobile
would have
in had it
not been for
mechanic,
repairing
wrong
party,
cost
the the
of the other
Park v. Moor
$500;
Co., Utah,
Mfg.
914,
and he testified that man
truck would
241 P.2d
40 A.L.
273,
given up
he had
result of the accident
R.2d
and the proper
as a
measure
dam
independent hauling business which ages
injury
personalty
entirely
an
per day.
destroyed
He
him
offered
is the
netted
difference
its
$50
between
value
$40
independent opinions
immediately
as
val-
immediately
neither
before and
after
Co.,
Angerman
Inc.,
as to
injury,
an itemization
of re-
v. Edgemon,
ues nor
76
394,
parts, except
169,
pairing
various
Utah
209 P.
the that the evidence*was insuffi 1, p. Illustration 578. “A intention- judgment for damages. cient sustain ally dog. kills 'B’s No evidence is in-r Ripley Co., Transfer v. C. I. Whitten as to the value of dog. 135 troduced S.E.2d 626; Tingler Lahti, only B is entitled to nominal damages, W.Va. . description unless the of dog by W.Va. S.E. 810 ownership which property, witnesses is as to indicate that mere of such heirship or oth- acquired by it has some value.” substantial been special knowledge er its giving no of means Although damages to be value, obviously an such own- give does not fact, appellant awarded is a has any er him an superior knowledge or make compen- shown some is entitled to expert prop- respect to the value satory damages. erty damages to it. The case is reversed remanded for a trial damages new on the alone. The issue failed to cred- party Each to bear own costs. his ible evidence concerning damages, ex- cept statements, his own the weakness of WADE, J., concurs. which has adverted to above. The CROCKETT, spe- (concurring judge trial apparently concluded that there cially) . satisfactory was no upon which It is with reluctance that I considerable he could make a finding, and the absence in the concur order directed proof, of such awarded nominal dam- of the Chief order to reverse ages. authority Justice. There is that such was the appear judgment it should that defend proper thing to do under circum- clearly damages ant so established his as stances.3 finding to make a in accordance therewith My hesitance to concur in the order made imperative.1 frailty In addition to the is further accentuated the fact that the self-interest, the defendant’s evidence was defendant made a motion for a new trial could, such court and undoubt ground on the adequate compensatory did, extravagant edly regard claims awarded, should have been irresponsible so in his own behalf as did not courtesy accord court ap- testimony so it tainted his whole pearing argue the give motion or to an finding not base a on his would opportunity suggest that some satisfac- concerning damages.2 tory proof presented. should be generally recognized rule concepts, my opinion Under older it is may testify owner value proof defect would have been fatal expediency is a rule of property judgment and that would necessity soundness, many instances, *4 its have been affirmed. Unless the witness shows he doubted. knowledgé matter, actually has some of Notwithstanding the foregoing consider- ations, myself but a moment’s reflection requires bring to see I it to concur in the or- Appeal Error, v. C. I. Whitten Transfer 1687, p. Ripley § C.J.S. 2. Co., 1. 5 722. 135 W.Va. 63 S.E.2d 6 62 . Blashfield, 3431, p. 3. 6 See. however, agree, I on the that the trial am unable der the fact made because of liable, and that of that the defend- plaintiff matter costs believe court did find the ' costs, prevail- ant recover it there was some should is incontrovertible that ‘ ing party in damage.4 Although the cour this court. substantial t parties con did was state to the agree Mr. I am not unable to c “quantum” proof of the erned with the HENRIOD that Justice respect comment with damages, did not belief, entirely unworthy of quality evidence credibility of accord with the but I am likewise out fact that the been which had received. McDON- opinions of Mr. Chief Justice plaintiff’s testimony as own CROCKETT. and Mr. OUGH Justice obj may have lulled his admitted over ection counsel on cross ex- my opinion plaintiff’s made believing he had into counsel testimony sufficient elicited amination satisfactory proof thereof. The view some support a in defendant’s favor judgment concurring my col Chief Justice damages as follows: of nominal excess regarded had the trial court leagues that if Examination “Cross wholly damage as defendant’s been made unsatisfactory, have that should “By Brann: Mr. pre afforded opportunity plain, Varner, you “Q. Mr. I believe Now evidence, tend toward a does sent further your was worth stated $700.- though counsel just result. Even final collision, immediately following this to assist the failing at fault ? you A. After the collision ? didn’t n pointed out I regards A. Yes. “Q. the collision. After interested above, be more must courts applying than justice done seeing that you the cost yet estimated “Q. And procedure between rules technical $500.00; is that cor- repairs to be in the order concur I parties. therefore yes got, the bids ? That rect A. defendant a give .remanding sir. evidence on opportunity further Varner, you say Now, “Q. Mr. damages. question of mechanic, and have been you’re years? Yes A. for some mechanic (concurring and WORTHEN', sir. dissenting). you rented a said “Q. You judgment opinion
'I am of month and a here for a down garage remanded the case reversed sir. A. Yes half? proceedings. further proof uncertainty recover, as to seq. 858 et A.L.R. Annotation 4. See damages. right deálihg with' cases *5 “Q. find one? A. No “Q. garage, You didn’t That was an automobile sir. Yes 12th Wall. 'was it? A. sir. “Q. would new axle How much a repair your
“Q. you attempt Did Approximately cost? A. $30.00 A. yourself any at time? Yes $40.00. sir. “Q. sir. $30.00 A. Yes $40.00? repair it down “Q. Why you didn’t n n “Q. qualified, you you have I couldn’t Now garage then? A.
at this know, expert? A. money put I did Yes. finish it. raise the things. spring under and a few “Q. price of what You know is, you? you Now tell don’t Varner, me and tell “Q. Mr. is, price of an axle Court what the something this business of about
Court house, you from a buy could wholesale it that costs the What mechanic. Oh, you and doubtless could. A. you most, materials, when re- labor or around $30.00. Well, just A. vehicle? pair a motor with it. wrong depends on what’s “Q. About A. Yes sir.” $30.00? Well, how your truck much "Q. on ready say Unless court is this actual ma- for the it would have judge, testimony just trial face repair truck? A. terials referred had the been tried to a Oh, around $.350.00. $400.00. jury, jury could instructed have defendant not entitled com- please tell the you "Q. Now would they pensable damages because could not parts con- damaged what these Court believe defendant’s due to its. bump- grille, A. A front of? sisted uncertainty, bring in a verdict frame, one front er, straighten the $5.00, damages of nominal the amount of rod, steering spring, new axle, one hesitancy then there is no basis in re- wheel, one fender. tire versing awarding the case wouldn’t the fender “Q. Now his costs. truck, necessary operate this my opinion In there is a further reason A. No sir. it? would fact, why the case should reversed. straightened
“Q. You could I am of the the case should you? yourself, permitted couldn’t A. never have been to reach frame it equipment to do with. court. I had If you ever looked around After the evidence was
“Q. Have the matter Yes argued resper- axle? A. had been counsel for the a second-hand sir. reopened to submit addi- to afford either that be observed trial court parties, tive plaintiff or de- tional evidence on either he had doubt proof as if desired. burden of sustained a had fendant parties. by the suffered actual of Kirkham This the case further observed: The court Spencer action sustained *6 court, under advise- taking the case after states he-suf- here and in
“He comes ment, setting respective rests aside the in Yet damages. dollars many fered so respec- parties, give the in order to before evidence a scintilla of there isn't opportunity parties an fur- tive down upon to break which this Court upon points two indicated ther awarding evidence precedent for establish a the court. given to this haven’t damages. You
proof of counsel added: * * himself. The this truck. would be of this tablish He Court Court “ [*] says he’s an got additional ”* to brief [*] bald-faced the amount necessary does the Probably (Emphasis [*] scintilla of then You Now whether the matter of one had been haven’t ordered the expert and statement, Court have proof I don’t added.) repair replacement for evidence can, given to this established and labor as to whether you could this truck. but what can * * respective outside to es- know, which do it ment, which pensatory damages, gree of in its defenses very rule it lifts our Utah C.P. HENRIOD, action.’ I construed dissent, respectfully suggesting that the “ that inexpensive determination of support declared certainty of enumerated in ” ** Rules of Civil requires, Justice we secure in Rule No. They from the observed, proof. at (dissenting). shall be consonant with the least recovery of Procedure, just, speedy, Torts “The main to be: certain de- liberally Restate- scope every opinion com- U.R. quoted just one or the statement After opinion suggests ap- main “the attorneys have asked both very helpful” in pellant showing was testimony. additional reopen to offer monetary extent his loss and that independent opinions neither however, offered that since “he as opinion, am of values nor an itemization as to the motion for leave offer made no counsel parts, the various repairing except testimony trial court should cost additional spde a new would cost approximately case would counsel advised P.2d 128. 3 Utah 2d says than on the when he “courts $40, could test merits the court $30 jus- seeing “his must be more interested validity opinions,” and that of his credibility applying in tice is done than technical probably suffered somewhat procedure parties.” rules of between the the view the facts of self- court from the dandy interest, improbability philosophy Such for the defend- vagueness, here, hardly convincing ant testimony” effect that either inherent to the plaintiff, this writer the trial repair money judge, get couldn’t continue he, too, inter- per In who have felt that was netting .a business month. $1000 justice .addition, seeing that opinion, ested in done rather suggests the main “the fact, justified applying proce- than in technical rules of as trier of the dure, true, seeing jus- he was though to it that accepting uncontra- —and dicted, tice was done in this case. his evidence as to all these loss use of vehicle.” With expense pro- At the dubbed the objections testimony, opin- main verbial with whom all were out of Jim sends the case back for an- ion nevertheless step, agree I can neither with the other trial. WORTHEN, except of Mr. Justice to what seems to be most self-serv- Add portion disagreement which is with Mr. ing the fact defendant made Chief McDONOUGIi Mr. Jus- *7 14 months after the until sued no claim CROCKETT, him, disagreeing with tice repaired accident, had not when he his course, portion to that as dis- truck, ’ tempts one to believe trial agrees with Mr. HENRIOD. Mr. Justice may overindulged have itself court quotes some oi WORTHEN de- Justice damages. may even What be awarding $5 which, testimony suggested, is fendant’s it me, sending is that in worse, it seems to context, observing that is lifted out of “In trial, the defendant a new is for case back counsel, my plaintiff’s on ex- cross claim, he at his and vir- whacks given two testimony; sufficient amination elicited to prove to his damages how tually told is support judgment in a defendants .in favor time, job effectively which he so a the next damagesij state- of nominal Such excess accomplish not before. or could neglected thing: but one ’.That-the ment can mean to believe such opinion, judge testimony. had may is the concurrence trial Nor, in context, testimony, (cid:127) in such along If taken sound. CROCKETT He as- Mr. Justice (cid:127) representations that reasons, opinion, why absurd de- main with such does the as signs repaired get not his lose, could at a only say fendant he should should to defendant $500, than when more he try of not was an chance to another case. given be mechanic, $1,000 he losing while was expert assumed that this case must have He repairs, the lack of technicality a month because and some kind of rather on ^decided (cid:127)1T4 unrepaired after hence is a puts still the test not correct one. the truck was' belief, months, worthy appears a This have
.14 no to been one is more where part important testimony credibility played role, being- so ridiculous as and n to a I justify any person jury reasonable in dis- had there been am convinced the counting trial court would have it as it all. not instructed Mr. WORTHEN would have us be- Justice following Also must take issue with the done, credibility lieve he must have since statement of Mr. WORTHEN: Justice facts, a matter for trier of the it ready say "Unless this is that the jury, been a matter and would have for judge, testimony just trial face the trial on controverted evidence not had the case referred to been tried to a subject or kind evidence jury, jury could have instructed the interpretation. than more compen- defendant was entitled they because could sable not be- Again I believe Mr. WORTHEN testimony defendant’s due to lieve its un- in error when he would send this case be certainty, bring should in a verdict of for a new trial because “one both back $5.00, in the amount of nominal attorneys have asked to re of the should hesitancy no then there is basis for in re- open testimony”, to offer additional and the awarding versing the case require to bring court did not them his costs.” say more evidence. what Who we attorneys should should indulges The statement in the unwar- attorneys It both done. felt ranted-assumptions (1) that: The testi- by remaining chances were better their mony quoted was the silent, appellate it is not tribu could be evidence that canvassed arriv- they spoken- nal to insist that decision; (2) at a ing trial court attempts sup WORTHEN Mr. Justice should not have been allowed to be the Spen Kirkham port quoting his thesis case; (3) finder in fact there cer, which, says, “sustained the action of competent no evidence or lack it * * * setting aside the the trial court decision, justify the trial court’s parties, in order to respective rests of eyes through the of a viewed reasonable opportunity- parties an give respective court; (4) that trial court arbi- upon points-. present further two capriciously weighed, or trarily was in- * * Sustaining the trial court re evidence; weighing (5) capable of cry reversing far from opening a case had taking no business into trial court reopening, making it trial court witnesses, demeanor etc. account *8 Spencer Kirkham quite v. is iru obvious that the remembered trial court it be Let controlling respect pertinent or here. no case and it this does no jury is; if said that there Many as to what the times we inquire trial court good to or lack of it should, ought might, or substantial could, decision, court’s support the trial one, we. there and will jury had instructed said Many times we have will affirm him. has if he the trial court will affirm
that we arbitrarily capri- unreasonably,
not acted say, must To be consistent we
ciously. case, trial court’s
reversing unreasonableness, result of was the
decision capriciousness. How
arbitrariness capricious failing arbitrary and
can be damages, when
find definite except indefinite- nothing to deal with
has evasion,
ness, difficult for vagueness understand, having before
me to parties presented full
him what anything and presented
opportunity to have desired, they it seems that a
everything act compelled not be
trial court party who either won’t nursemaid any better case than did the
or can’t in this instance.
(cid:127)defendant
CEDAR Utah, COMMISSION
PUBLIC SERVICE
Defendant.
No. 8401.
Supreme Court of Utah.
Nov.