173 P. 1168 | Utah | 1918
Lead Opinion
Plaintiff, the holder of an accident policy in the defendant company, brought this action to recover indemnity for personal injury alleged to have been received by him as the result of an accident while traveling on. a passenger car of the Denver & Rio Grande Railroad Company. It is alleged that the accident occurred on the 12th day of May, 1913, at Spring-ville, Utah.
Defendant denies generally all of said allegations, except that plaintiff was a holder of a policy in the company. As a further defense it alleges noncompliance with certain “ agreements” contained in the policy and a breach of warranty as to written statements made by plaintiff in the application upon which the policy was issued. The case was tried to a jury, verdict rendered for plaintiff, and motion for a new trial overruled. Defendant appeals.
Defendant assigns as error the admission of certain evidence over its objection, the exclusion of certain evidence offered by defendant, and that the court erred in overruling defendant’s motion for a new trial; also that the verdict and judgment rendered thereon are against law.
The policy upon which the action was brought provides certain indemnities, which, so far as material here, are as follows:
“If such injuries shall from date of the accident continuously and totally disable and prevent the insured from transacting every kind of business, the company will pay for the entire period of such disability the weekly indemnity of $35.00.
. “All the above amounts shall be doubled if such injuries shall be received while riding as a passenger in or on a public conveyance, including platform, steps, or running board thereof, provided by a common carrier for passenger service, ’ ’ etc.
The policy also, under the subhead, “Agreements,” contains the following conditions upon which defendant relies:
“Written notice of death or of any injury or sickness or claim must be given to the company at its home office in New York City, or to a then authorized agent of the company in the city, town, or county in which the insured shall then reside, within twenty days from the date of the accident, or within ten days from the date of the beginning of disability from sickness, or immediately in case of accidental death, unless such notice shall be shown not to have been reasonably possible, in which case notice shall be given as soon as reasonably possible. Affirmative proof, under oath, of loss and of the company’s liability hereunder, in form required by and satisfactory to it, must be furnished the company at its home office in New York City, as follows: * * * Within ninety days from the termination of loss of time or medical attendance,” etc.
The evidence admitted over defendant’s objection, and of which defendant complains, related generally to the questions as to whether the defendant had waived noncompliance with 'the'“agreements” above quoted and the statements made in the application.
Respondent, however, while not disputing the proposition of law that offers to compromise are not admissible in evidence, nevertheless denies that the exhibits objected to by defendant were in any sense connected with an offer to compromise the claim. This, therefore, renders it necessary to examine the exhibits to determine their nature and the circumstances un
“For the following purposes: In full compromise, payment, satisfaction, discharge, and release of any and all claims that I myself, my heirs, executors, administrators, assigns or beneficiaries now have or may hereafter have, ’ ’ etc., referring to the accident and the number of the policy.
Exhibit L is the cheek above referred to for $52.50. The receipt is a stock form, printed, except blanks to be filled in, and probably is the form in general use by the company. It is quite certain the form was not prepared specially for settlement with the plaintiff. The word “compromise,’’ printed therein, is therefore without particular significance concerning the question under review.
We have not been able to find any matter in the record which in any manner suggests that these documents were executed and delivered as an offer to compromise the claim or effectuate a compromise settlement. The fact that the check and the receipt accompanying it bear date November, 1913, after the company had thoroughly investigated the claim, and the further fact that Exhibit K is a statement that plaintiff is allowed for three weeks ’ partial disability $52.50, all imply
The defendant, assuming that the exhibits referred to in
“The appellant shall assign errors in writing, subscribed by himself or his counsel, and shall serve a copy thereof on the respondent or his counsel, and file the original, with the clerk of this court within five days from the time of the filing of the transcript of the record on appeal. * * * When the alleged error is upon the ground of the insufficiency of the evidence to sustain or justify the verdict or decision, the particulars wherein the evidence is so insufficient shall be specified. The said assignments, or so much thereof relied upon, shall be set forth in the printed abstract, together with references to the pages in the transcript and abstract where the rulings and exceptions pertaining thereto appear. This rule shall go in effect aiid apply to all cases filed in this court on and after November 1, 1905.”
If appellant intended to rely on insufficiency of the evidence as one of the grounds of appeal, the requirements of the rule above quoted were entirely disregarded. Were it not for appellant’s brief filed in the case, the court would have no reason to believe insufficiency of the evidence was relied on as error. This is not a compliance with the rule. The rule is mandatory. It is even jurisdictional, in the sense that a ■compliance with its provisions is essential to the right to be heard as to any alleged error. The assignment of errors is the pleading in this court which defines the issues and asserts the claims upon which the appellant relies. It bears the same relation to the notice of appeal which the complaint in the trial court bears to the summons. If the summons has been served in a case in the trial court, and no complaint is filed in time, the action fails. There is nothing for the. court to try. No judgment can be rendered, except a judgment dismissing the action. So it is in case of a failure to file and serve an assignment of errors in this court as required by the rule.- It is true, where an attempt has been made to assign error, an amendment thereto may be allowed upon seasonable application, the same as to any other pleading; but, unless an error is assigned, it cannot be reviewed. This question is re
We have heretofore during the present term had occasion to review this question, and declined to consider the evidence for the purpose of determining whether or not it was sufficient to sustain the findings. Egelund v. Fayter, 51 Utah, 579, 172 Pac. 313. We declined to review the evidence for the pur-pose named, for the same reason that we decline in the present case — because there was no compliance with rule 26; there was no specification of particulars in which the evidence was insufficient. Both the statutes and decisions of this court are cited in the case last referred to, and need not be repeated here. It should be understood and appreciated that rule .26 has its foundation in a positive statute of the state, one which is mandatory in terms and which has never been repealed. Comp. Laws Utah 1907, section 3284. Having its foundation in a positive statute and breathing as it does the very spirit of that statute, and supplying its place in the practice of the court, it should not be considered as merely directory, but as absolutely binding upon the court and the parties litigant. Unless the court and its officers steadfastly maintain the integrity and unimpeachability of rules of this character, it will be impossible to maintain orderly procedure and transact the business of the court. In the circumstances as here presented, we feel there is no alternative but to decline considering the evidence, with the view of making it a determining factor in deciding the case.
For the reasons above stated, the judgment of the trial court is affirmed. Respondent to recover costs.
Rehearing
In its application for a rehearing appellant argues that the court misconceived the grounds relied on for a reversal of the judgment. It says, in substance, that insufficiency of the evidence was not assigned by it as error, nor was that the ground which its counsel intended to urge; that the errors assigned and relied on (aside from the other assignments disposed of by the court) were:
“ (1) That the court erred in making its order overruling and denying defendant’s motion for a new trial in said case; and (2) that the verdict and judgment rendered therein are against law. ’ ’
It is true appellant did not in so many words assign insufficiency of the evidence as error but in substance and effect it did attempt to make such an assignment, and that too without specifying the particulars in which the evidence was insufficient. Appellant must admit (if it does not rely on insufficiency of the evidence) the two assignments referred to have no merit or standing. In rendering our former opinion we considered only the substance of appellant’s contention. Nearly half of its able and comprehensive brief was devoted to a discussion of the insufficiency of the evidence and the law relating thereto. This was done without any specification whatever as to the particulars wherein the evidence was insufficient. We conceived, properly, as we believe, that this was a total disregard of rule 26. We were of the opinion the rule ought to be enforced both in letter and in spirit. We are still of that opinion. The contention that the rule may be applied where insufficiency of the evidence is specifically assigned as error but should not be applied where insufficiency is relied on, as in the case at bar, is without any merit whatever. The purpose and object of the rule, which need not be elaborated here are just as essential to be effectuated and carried out in a ease of this kind as in the case where insufficiency is specifically assigned. This identical question- has been determined
7 Appellant relies on the opinion of this court by Mr. Justice Frick in Railroad v. Board of Education, 32 Utah at page 310. An examination of the record discloses that appellant in that case specifically assigned “insufficiency of the evidence to sustain the verdict of the jury or decision of the court, in that there was no evidence in the case showing or tending to show,” etc. The court, under that assignment, held it to be its duty to look into the evidence to ascertain whether there was substantial evidence to support the judgment. That presents an entirely different question. When an appellant contends there is no evidence at all, the assignment must be sufficient because of his manifest inability to specify particulars. In fact, to say there is no evidence at all is a specification of particulars as perfect as can be made in such a case.
In the present case appellant says:
“It was not contended by the appellant, and is not now contended by us, that there was not some evidence sufficient to support a verdict for some amount.”
In such a case, in the opinion of the court, to authorize an examination of the evidence to ascertain whether or not it is sufficient, the particulars wherein it is insufficient must be specified, whatever may be the form of the assignment. The opinion of Mr. Justice Frick,- relied on by appellant, certainly does not support its contention.
The application for a rehearing is denied.