*1 opinion correct, If the main the horn 424 P.2d plenty louder, blows much and Pandora’s ROYLANCE, Plaintiff Duane car, Box becomes a a box shoe box. Respondent, employers responded Thousands of nationally plea give subsidized those Stephen DAVIES, L. Defendant Appellant. who, difficulties, because of mental are un- cope worker, average
able to with the —but No. 10641. may things who do of a menial nature satis- Supreme Court of Utah. factorily. Q. If a low I. tois be added to age advanced a determining factor in Feb. permanent my disability,
total guess is that
employers using will discontinue a lot of help,
unfortunates who need the em- —if
ployers support faced with lifetime Q.
one with a I. low if the latter loses industry
hand in nothing and can do there-
in because of the plus loss of the hand a low Q. Any
I. other conclusion seems to me as leading
(cid:127)one help needy per- shriveled application
sons and an unrealistic
letter, purpose spirit of industrial com-
pensation legislation. me, song opin-
To the theme of the main
ion respect Q. to the I. factor is dis- compensation
cordant with song. The
physical handicap losing one hand Now, you
amount to if add to that 10%.
figure Q. because a low I. to con- 90% total, permanent disability,
clude 100% —the
result obvious: labor market for
poor Q.’s unfortunates with low I. will tend dry up, employers will take sec- —and Q.
ond look at the so-called I. factor.
ELLETT, Justice. guest buddy’s was a day. automobile on Christmas Both *2 nips celebrated the occasion with a few liquid containing proper refreshment bring amount of alcohol to cheer and gladness partakers. hearts of over, day Before the the defendant against light driver had run his car a steel pole causing plaintiff to sustain juries. plaintiff At that time or later de- he, Tray, Dog cided like Old had been long. wrong company day He eye lost in result some vision one being collision, in be impaired him see vision enabled clearly being more than before that the law Utah, stayed what is in he should have prevents home. has a Utah statute which guest recovering from from ex- his host cept injury proximately resulting for from (Sec- or misconduct. intoxication willful 41-9-1, 1953.) tion Utah Annotated Code provided It is further therein that showing that the burden of has such intoxication willful misconduct or proximate injury. was the cause added.) The courts of this State (Emphasis the wisdom cannot be the forum wherein lack of is debated. of the statute already performed that legislature The has govern- department function, and that Christensen, Skeen, Worsley, & Snow too language clear ment has said City, appellant. Salt Lake for guest recover misunderstood cannot Provo, ordinary negligent acts for Ray Ivie, respondent. from his host H. driving connection with the of the auto- the evidence indicates riding. mobile in which both are The ac- was not under the influence intoxicating liquor any way whatsoever, tion can be maintained where the in- and this is part results from on the testimony intoxication true from given by the of- of the host or from his willful misconduct. investigated ficer who the matter and who shortly the scene after the crash. sympathetic is natural for all to have understanding feelings injured anof The facts of this case dispute. are not in plaintiff who is alone to bear the con- parties left stopped stop sign at a on the sequences injuries negli- due heavily west side travelled, of a divided gence host, especially of his is this so highway. plan through was to cross wrap when he sees the himself in a host the southbound lane of traffic and enter away legal immunity cloak of and walk into the go northbound flow and north for negligence from the scene of scot free. some distance until a break could be found dividing separating barricade the two likely try more do fire- Jurors *3 traffic, directions of then justice make a turnU parties side between the the face plain- and return to the guest of a beer tavern where statute judges, than are who tiff duty worked. The tavern was on the west have a to enforce the law as is highway side of just north a service duty written. judges This perform must bought his though even station at which the defendant to do so result de- gas from That sta- priving injured time to time. service plaintiff recom- pense approximately tion was from the feet injuries whatsoever for sustained. parties stop sign. If it thought were person that a inis need money but legally cannot recover it due to waiting After time a some break to a law such guest statute, as the we should up traffic, show de- in southbound pass the hat and say negli- that mere spun fendant impatient gravel became gence is willful misconduct. To hold as he started north on the west side of simple negligence to be willful misconduct berm or highway. shoulder of the It was is to repeal amend or passed by the law as (S p. m.), light dark :30 and a snow was legislature, our judges and this cannot do. falling, although there was on the no snow Although plaintiff and defendant had ground. each part consumed two and of a third whiskey drinks of within plaintiff two and a half was thrown back in his prior hours accident, to the by no claim is seat ques- sudden start and asked the made that drinking anything tion, you going?” “Where are to which to with question. the collision in All of replied, got get gas “I have instantly just im- is that
anyway,” and thereafter could be drawn did not see occurred, pact it. wide, up thirty The court summed feet contention of shoulder by frequently cars
graveled, and travelled his Instruction 2 as: No. roadway into stores follows: turning from the
shops highway. Down the adjoining the approximately That at North string there exists middle of shoulder Provo, City County, Utah State of apart running light poles of steel 189 feet Utah, 91, Highway on U.S. defend- stop sign. northerly in a from the direction digressed regularly ant trav- from the road, portion eled and drove off The defendant turned west of first portion regularly traveled of the road pole, stopped he was which was near where a steel on the west side of U.S. 91 into stop sign and which was north place al- utility pole. At the time street he had been the side on which leged, the manner in which defendant speed travelling. exceed At no time did his will- amounted to drove said automobile twenty-five according per miles hour ful misconduct. testimony witnesses. Kearnes, 118 In the case Stack any part There was no traffic on approved 221 P.2d this court Utah car, shoulder other than defendant’s fol given by trial court instructions the sole with the cause collision : lows pole second steel was the fact
front wheel of car defendant’s struck greater misconduct connotes Willful low cement abutment a feet few negligence or wrongdoing than mere light pole south and west of second negligence. includes gross even piece above referred of raised to. This intentional violation conscious cement had been the base of a wooden law or rule of conduct definite pole long A car could since taken down. apprehended peril knowledge of the straddling pass safely by it. over it act. failure to from such act or *4 the front wheel of the automobile When the No. 7 further refined Instruction object, struck this the car was thrown solid as: definition pole, causing northeasterly and the struck doing an act or The intentional of injuries complained the of. act,, failing omitting an or do tentional injury is a knowledge serious with that defend- There was no evidence that the result, merely possible probable not a intentionally the abut- struck cement ant doing with an act intentional of logical or the inference which ment, and.the
39,9 disregard wanton and reckless the twenty thirty-five of be between miles possible consequences. per It delib- involves hour and collided an automobile highway. intentional or wanton conduct on the favored erate The host said doing he omitting stop or to do an knowl- did not see sign, although act with the it had edge appreciation likely red injury rays that reflectors to catch the of head- lights approaching to result Judgment therefrom. cars. was defendant, for the plaintiff ap- and the plaintiff says That that when defendant pealed. Although appellate the found court changed crossing his mind about the multi- that the trial had court erred favor highway laned up and accelerated his car giving the defendant in instructions to the shoulder, wrong the did intentional jury, verdict, which error had caused the knowledge injury act with that serious was judgment nevertheless it affirmed probable merely a possible and not a result. upon ground rendered and so did inquire Let us further into this matter. for the reason that not the case should Sparrer place. been Kersgard, (Calif., 1939), In submitted to the first P.2d court said: 85 there was evidence that speed going driver was excess negligence If plain- were wrong limit of the road. and on side required prove, tiff were he undoubt- The court stated: edly jury; made a case for the but we do After all of the evidence Longaker’s think that failure to see taken defendant made motion sign speed his maintenance of bring in a be directed to verdict miles crossing a street at in his The trial court denied favor. o’clock in morning neg- is evidence motion and the defendant claims ligence gross justify finding so as to claim think that trial court erred. We “wilful wanton misconduct.” well founded. must be conceded once was at that there evidence along Since there no traffic prescrib- the statute defendant violated thirty-foot an and no reason to shoulder ing speed of motor vehicles and ticipate time entered at the wrong driving he was side travelling less purpose thereon for the alone, facts, standing road. do But destination, than feet the mere to his not constitute wilful misconduct. highway wrong driving on the side injury. There could not be a cause of the Longaker, (C. In the case of Cusack v. speed is no contention that the driven C.A.2d), night, host, 95 F.2d stop sign speed speed drove at a testified or in limit. unlawful excess of *5 400 any rea- Ricciuti to be wilful misconduct under the case of
This court' in 282, 45, sonable or of fact. theory P.2d had basis Robinson, 269 2 Utah 2d question of whether rule on the occasion The fact that it was dark could make no thirty- per in a sixty hour speed of miles a difference, as defendant’s car had to will- amount zone would mile residential headlights, complaint and no was made misconduct, there said: ful and was any thereto. defect with relation case, a rea- Let it be the defendant the facts of this assumed Under person pole not conclude that he did could drove his into the sonable car intentionally high- failed to did or in defendant not hit the concrete obstruction this way. fall within act that would he will- do an find that One have to friends. people These were fully pole definition. make case of drove into a of facts no or combination There is fact under the evidence willful misconduct a wanton or in the record which showed this case. consequences, disregard of the reckless us very A similar to the one before case a of control which in this case were loss Cal.App. Wilkie, now is that of Fiske v. solely dropping the accidental due host 2d 154 P.2d wherein lighted cigarette the defendant’s a cars on the road. driving with no other clothing jumping curb and the car fine and did not she felt She testified that dispose when tried to defendant go her off know what car to caused * * * lighted cigarette. The assumed and collide with road onto left side travelling fact defendant was paved portion tree some 15 feet from p.m. h. in a residential zone roadway. holding regarding In its fact that would indicate defendant relationship, court guest-host knowledge any reason to believe page 731 said: possibly speed probably or even any fail to find In the case we instant lighted cigarette acci-
would result course taken evidence that the erratic dentally falling out his mouth. Such it left the defendant’s automobile an event as well could have occurred highway a tree was the and crashed into any travelling p. h. in kind of while m. act or omis- result of intentional any speed It was weather and zone. part. sion her seems to have She speed, dropping not the but surprised her completely as were lighted cigarette in the loss that resulted explain guests, and no better able to control, and in- accidental might the accident. cause of voluntary cannot be said ferred from the evidence that circumstance
AQi *6 asleep became driver fell or otherwise In this case is difficult to see inattentive, might any or' which how unconscious acts done by the defendant, either part. negligence singly on her have been or in combination, could' have been done with knowledge injury to the Experience taught has that certain plaintiff probable. Does not the law of rarely hap- kinds of automobile accidents self-preservation cause us to doubt that he pen negligence part on the of without even any foresaw injury to himself and a driver; many, most, if of fortiori the guest? His failure see accidents, driver alone knows the obstructions in the road in time to and, happened; what rea- for that hitting avoid them simple at most would be son, if not will not ex- the driver can or negligence and catapulted cannot be accident, plain the cause of those status of by any willful misconduct stretch accident, jured in in order to enforce imagination. of the presump- remedy, their are entitled to arising negligence of tion the driver’s complains Defendant of failure of ipsa loquitur under the doctrine res of jury assumption to find of the risk or upon proof that accident occurred contributory negligence part on the of the ex- while the automobile was under the plaintiff. clusive control of On defendant. plaintiff risk which could have hand, experience most other teaches that assumed being risk of case accidents of the kind in the instant injured because defendant’s intoxica- not the result are of the driver’s intention tion; plaintiff but never claimed since guests to harm or result of the even the under the influence disregard probable or driver’s for the intoxicating liquor, he had no to as- risk possible any consequences act, but plaintiff sume. Since the made no conten- negli- usually the result drinking liquor any tion that gence reading or inadvertence. From ability effect whatsoever de- on the of the instant case entire record automobile, fendant to drive the light plaintiffs, most we favorable to parlay could not the few drinks which any are unable to find evidence of wil- got in willful on evidence into misconduct defendant, part ful misconduct part of the defendant. any facts or evidence circumstances from which wilful misconduct could could not be held to have Therefore,
inferred. it must be held assumed other risk of which he neither plaintiffs prove failed to their second anything knew nor had to do about. time cause action. speed per A cover of miles hour would upon given Judges to rule matter. will approximately five seconds.
the 189 feet vary opinions question tend in their because of interesting that the to note (It is economic, political, reply religious, de- or cultural by plaintiff and the asked experi- background their amount and because of that same take about fendant would ences in life. All matters will of these time..) cold, prevent becoming a the law from Ordinary contributory negligence lifeless, rules, inflexible and will set of (See is no defense to willful misconduct. subject law enable the ever to be Torts, Ed., p. 436.) Third Prosser on refining processes necessary keep a so dynamic society in obedience to satis- there is substantial dis When factory system of laws. pute evidence, question presented; but there is substantial no *7 holding It is the of this court that there dispute in and the court the evidence when is no evidence of willful misconduct say can a matter law that reasonable verdict, record and case to sustain facts, way only find one men could judge is reversed with to the trial directions appli duty it his to determine then is judgment to enter a no cause action jury return cable and direct the to law favor of the defendant. pre and the facts under the law verdict sented. CALLISTER, J., concurs. agree on appellate court cannot an When n men question HENRIOD, whether reasonable (concurring). Justice be de- could differ on what facts could so, constrained doing I concur. In I feel evidence, then would
duced from opinion against what main to defend the finding jury’s that disturb the seem to per- and may disarming think be some I judges were them- indicate that big- criticism and haps unrealistic bits of men. unreasonable selves system. jury ger deification of the bits of applying the However, it comes negation this court’s dissent decries facts, appellate undisputed law to has taken jury’s court of the verdict. This as unreason- judges to be classed are not opinions, in more than a few course unable to simply because able by the which been sired —some of have amongst judge or agree trial with the author. dissent’s has not reached The law themselves. jury “The that sciences, The dissent volunteers certainty the exact thought the defendant’s necessarily undoubtedly interpretation will not same equal With irrational.” highly conduct by judges have occasion made who
4Qg facility jury suggest jury system I could that “The un- I think is still the best doubtedly thought company system, the insurance but some cases can serve as pay up policy limit, could afford an anathema to law.
—$10,000,” possibly discounting somewhat
CROCKETT, Chief
(dissenting).
Justice
plaintiff’s
statutory liability.
It
is
my
rather
firm conviction that
interesting
this
there is
writer
observe
ample
many
justification
jury
how
happen
the evidence for the
verdicts
to be
judge’s
trial
$10,000.
jury
figure
round
submission to the
is-
saying
Without
loud,
misconduct;
so out
sue
the defendant’s willful
might guess
one
that more than
jury’s
for the
jury
finding against
one
might have
him on
stretched the dollar
similarly
issue.
I am
shriveled
convinced that
concept
liability,
of tort
deprives
this
especially,
reversal
where it
seems
almost obvious
jury
right
by jury
of trial
unjustly
$10,000
knew
takes
there would be
avail-
judgment
able
from him a
from
in fairness
insurance
which the alleged tort-
to;
feasor
entitled
would not
pay.
to a
amounts
wholly unwarranted intrusion into the well
The dissent’s painstaking
plain-
detail of
prerogatives
established
jury
of the
and of
injuries
tiff’s
and the seriousness thereof
the trial court.
prove
tends to
my point,
—that
many
This court has
times reaffirmed
also detailed them and decided that under
importance
right
of trial
circumstances,
grant
should
him a
jury;
the prerogatives
and of
judgment
Injuries
for that reason.
should
desirability
and the
of sustaining verdicts
not be canvassed as a reason for
judg-
fairly
at;1
arrived
breadth
and also of the
but
liability.
ment
incidence
court,
of discretion which the trial
because
*8
There have been more instances than one
advantaged position,2
of its
should
al-
be
where a wife has sued her own husband
passing upon
sufficiency
lowed
and
statutes,
under guest
him
accusing
being
of
grant-
evidence;
credibility of
and in the
a reckless incompetent and has obtained
ing
denying
new trials.3
of
against
payable by
a verdict
him
his insur-
Very likely together they
buy
ance.
majority
por-
opinion
The
states those
fairly
money.
new car in his name with
it
to
and
tions of the evidence
refers
Peterson,
411,
3.Geary
Cain,
340,
1.
11
Hales v.
Utah
360
v.
P. 416.
2d
69 Utah
255
Nelson,
435,
P.2d
326
882.
7
2d
See
v.
Utah
Holmes
advantaged position
court,
King
722;
2. As to
of trial
Union Pacific
P.2d
and
Co.,
see statement
in Nokes v. Continental
R.
Utah
ant making they was answer when crash- drinking, ant had dark been nor that telephone ed pole. into the stormy annoyed Plaintiff said: night he had become happened “It all quick so abrupt like seemed made an and irrational decision —it split “dig second—all I remember in” as hitting go along fast as his car could the pole.” the wrong highway side of the in an area not conditioned travel, for such and with jury undoubtedly thought apparent safety, total unconcern for ran defendant’s conduct highly was irrational. telephone into pole. jury They could well believe it is a pri- to, entitled undoubtedly did, their make mary requisite to safe driving to at least analysis upon and come to their conclusion drive the car on the highway where it considering in combination of the facts supposed driven, to be but that the defend- by contributing disclosed the evidence and ant not did even exercise that minimum of they end result.4 When are con- so judgment care, impetuously but decid- they impress sidered likely me as about as ed to make through a mad dash an area a set of justify circumstances to submis- neither conditioned for nor intended for sion issue willful misconduct to travel, such against in a crash culminating any readily conjure up I can pole a telephone and a mail box which my mind, except only a situation where plain were sight. The evidence is that someone set about with intent deliberate surfaced, may this area “was not it injure someone else. asphalted past, but up over,” graveled broken It is suggested area not that defendant acted pull they injure “where used it in and park.” intent deliberate supported These facts also or himself. The law riot so does pictures, jurors require. and the residents of properly The trial court instruct- any- the area could ed help knowing not could not find the way. Furthermore, facts, guilty because of these of willful misconduct for only ordinary negligence, was an area where there gross were nor even for likely obstructions, negligence, but where there but if he acted actually obstructions, were as the result reckless manner should have injury demonstrated. realized that to others would abe Jumper Goodwin, Layman 857; Heard, 4. See 239 S.C. 123 S.E.2d also v. 156 Or. 66 P.2d
406 * * * probable result.5 submitted to the sonable men might He also arrive at dif- jury assumption the issues of risk conclusions, very ferent then this doubt de- contributory negligence. question and to be fact for termines one of ** jury so, this is it is When Having set above forth situation right parties of the jury to have a deter- brings point I me to the at which am baffled mine it. paid This court its has heretofore well-respected, experienced, in this case. A respect judicial to the virtue of restraint perceptive judicious judge, and trial from desirability and the observing by of position advantage his in relation to the encroaching upon right by foundational witnesses, trial and has believed that preserved which there people support jury evidence was sufficient privilege presenting disputes their to a misconduct, finding issue of willful representative group of citizens. It is the denying both at the time and trial in keeping people means of the law close to the pre- a new motion for trial. The safeguard against and as the serves ultimate sumably fairminded and citizens reasonable deprivation overriding of or of in- agreed dissenting without a vote rights by any dividual arbitrary despotic finding for the on this issue. For action.7 have, whatever value there is added writer,
thereto the firm conviction of this
Although
plaintiff’s
the nature
concerning whose
in this
reasonableness
juries
damages
and the extent of his
do not
matter
judge.
I must leave to others to
Yet
go directly
question
sufficiency
wipes
everything
this court
out
heretofore
finding
of the evidence to sustain a
of will-
done
ground
in this case on
rea-
no
misconduct,
ful
it is not amiss to be aware
person
sonable
could so believe.
of their seriousness to him. The medical
painful,
opinion just
evidence shows that he
pointed
differences of
has suffered
permanent injuries
upon
out
bring
would seem to
: scars
this case within
serious
face;
feeling by
principle
the well
his
function and
by
established
stated
loss of
sensory
respected
impairing
late
and motor
Frick of this court
some of both
Justice
Co.,6
eyes;
Oregon
Newton
Line
about his
and most serious
v.
Short
RR.
nerves
“
* *
*
all,
eye.
has
question
right
He
negli-
Unless the
is left blind
hospital
gence
doubt,
from
incurred substantial medical
free
the court cannot
* * *
pass
bills;
long-
upon
law;
necessity of
question
and is under
as a
term,
checking
perhaps lifetime,
if the
court is in
further
doubt as to whether rea-
Kearnes,
237,
5.
R.
Stack v.
7.See
statement
Stickle v. Union Pac.
118
221
Utah
Co.,
P.2d
P.2d 867.
594.
Utah
Oregon
Co.,
Newton
Short Line RR.
43 Utah
tions grave be of im-
portance gone through He him. has
n ofthe indicated; suffering and the tortuous
procedures leading up through to and trial by jury, rulings judge wherein the determination has $10,595.00.
been awarded a verdict of Un-
der the circumstances set hereinabove forth they appear me, judg- to now take away
ment my opinion him from is in an act impelled protest
which I am an in-
justice, responsibility for which I have
no desire to I share. would affirm the
judgment.
TUCKETT, J., dissents.
Fern L. Plaintiff and BADER,
William A. Defendant Appellant.
No. 10691.
Supreme Court Utah.
Feb. Richardson, Hatch,
E.L. Sumner Salt J. City, appellant. Lake for City, Baysinger, Howard E. Salt Lake respondent.