Gerard v. Young

432 P.2d 343, 20 Utah 2d 30, 1967 Utah LEXIS 518

Opinions

HENRIOD, Justice:

Action for termination of a cafe lease where allegedly gambling was being conducted, and where the court found this to be true, and a violation of a condition in the lease. Affirmed except as to damages, with costs to plaintiff.

This is a civil, not a criminal action. Gambling was the only issue in the case. Defendant denied the allegation, — not under oath. Thereafter in a deposition, under oath, he took the Fifth Amendment, admitting that the alleged gambling might incriminate him, which was inconsistent with the denial in his pleadings. This left the sworn affidavits pointing to gambling, which affidavits further he refused to deny categorically.

The trial court should be affirmed. Otherwise, anyone sued on a promissory note could delay the day of judgment for two or three or more years by the simple device of taking the Fifth, — without fear of any perjury charge. .

The concurring opinion of Mr. Justice Ellett accurately states the facts in this case, which statement is adopted. We also adopt the conclusion of Mr. Justice Ellett, that factually and statutorily, the respondent is not entitled to treble damages, and that the trial court was in error in assessing such treble damages. The case is remanded with instructions to enter a judgment consonant with this decision, and to take evidence, if necessary, to assess damages, not trebled.

CALLISTER, J., concurs.