172 P. 315 | Utah | 1918
Plaintiff, respondent here, brought this action in the district court of Cache county to recover damages for unlawful restraint and imprisonment of plaintiff in the office of defendant at Logan, Utah, on or about the 17th day of July, 1914. It appears from the record that the defendant was at that time, and had been for a number of years, practicing dentistry in that city; that immediately prior to that date the defendant, under contract, -had been repairing a set of teeth and doing other dental work for the plaintiff. It is contended by the plaintiff that the agreed price for such work was twenty-two dollars; on the part of the defendant it is claimed that the agreed price was thirty-three dollars. It also appears that on or about the 16th day of July plaintiff went to the office of defendant for the purpose of having the plate tested,
It is contended by the appellant that the cause of action is barred by subdivision 3 of section 2879, Comp.
“Action for forfeiture, libel, assault, etc. * * * Within one year: * * * An action for libel, slander, assault, battery, false imprisonment, or seduction.”
In that regard it appears that on the 22d day of December, 1914, summons was served on the defendant, Aith notice that within ten days thereafter complaint would be filed with the clerk of the district court. It also appears that the attorney for plaintiff in preparing the complaint had drawn two complaints which differed in a material way, and that the plaintiff, after service of the summons, verified one complaint, and that complaint was filed with the clerk within the ten days. At the same time, through a mistake or oversight, the plaintiff failed to file a correct copy of the complaint verified by the plaintiff, but filed a copy of the other complaint prepared by plaintiff’s counsel. Defendant’s counsel subsequently secured the supposed copy of the complaint filed with the clerk, and in due time filed an answer thereto, and the cause of action was not called for trial until November 19, 1915. After the action had been called and a jury impaneled it was discovered for the first time that the copy of the complaint which defendant’s counsel had obtained from the clerk’s office was not a copy of the original complaint filed, and which had been verified by plaintiff. Thereupon, on motidn of defendant counsel, that action was dismissed. Thereafter, on or about the 7th day of December, 1915, summons was served upon appellant, and the complaint in the present action filed, issues joined thereon and a trial had. Additional damages are claimed in this second cause of action not mentioned in the former action, but the causes of action mentioned in both complaints are based on the same act, and grew out of the same unlawful restraint or imprisonment, and is therefore the same cause of
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action or upon a cause of action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
Under the facts stated, it is apparent that the dismissal of the first cause of action was not a trial upon the merits, and the second action having been instituted within one year after the order of dismissal, that action is not barred by the provisions of the statute. Hall v. Hurd, 40 Kan. 374, 19 Pac. 802; Luke v. Bennion, 36 Utah, 61, 106 Pac. 712.
Other assignments of error refer to the instructions as given by the court and the refusal of the court to give other instructions requested by the defendant. It is especially urged that reference by the court in its instruction No. 4, in defining what constitutes an intentional restraint of the per-
Complaint is also made that the court erred in its refusal to
There are some further objections to the instructions given, .but they are without merit. A careful reading of the entire instructions will disclose that the defendant, not only was not prejudiced by the instructions, but that every contention or defense made by him, whether he was legally entitled to it or not, was submitted to the jury, and the instructions were not only fair to the defendant, but were as favorable to him as he could possibly have any right to expect.
The acts of the defendant as disclosed by the record, in our judgment, not only justified the jury in its finding that the plaintiff was unlawfully restrained of her personal liberty, but, on the contrary, we do not see how any other finding is deducible from the defendant’s own testimony.
We find no prejudicial error in the record. Judgment is therefore affirmed. Respondent to recover costs.