Larkin v. Saltair Beach Co.

83 P. 686, 30 Utah 86, 1905 Utah LEXIS 64

• Court: Utah Supreme Court
• Decided: December 26, 1905
• Docket: No. 1650
• Status: Published

Opinions

MeCARTY, J.,

after stating the facts, delivered the opinion of the court.

Respondent has filed in this court a motion to strike from the files in the case the bill of exceptions. It is claimed that no proper bill of exceptions was ever settled, for the reason that the bill of exceptions was signed and settled on the 2d day of March, 1905, by Hon. Samuel W. Stewart, judge of the district court, before whom said cause was tried, and that on said 2d day of March, 1905, he was no longer judge of said district court, his term of office having expired before that date, and that therefore he was without authority to settle and sign the bill. Section 3290, Revised Statutes Utah, 1898, among other things, provides that:

“A judge, referee, or judicial officer may settle and sign a bill of exceptions after as well as before he ceases to be such judge, referee or judicial officer.”

Rut counsel for respondent contend that this provision of the statutes is in contravention of section 5, article 8, Constitution, Utah, which, so far as material here provides that: “The term of office of the district judges shall be for four years” and that the effect of the provision of the statute referred to is to extend the judicial functions of a judge of the district court beyond the period of his constitutional term of office. This question has been before the courts of other states, and, while some of the decisions hold that a judge has no power to settle and sign a bill of exceptions after the expiration of his term of office, we think the weight of authority and the better reasoning is in favor of the doctrine which holds that a judge who has tried a case may settle and sign a bill of exceptions after he ceases to hold the office. The reason for the rule is apparent. The bill recites the exceptions taken and is a narrative of what occurred at the trial, and the judge who tries a ease and is familiar with all of the proceedings is better able to settle a bill of exceptions and thereby preserve to the parties to the action their substantial rights than would be his successor, who might have no personal knowledge of what occurred at the trial. The Constitution of Colorado and that of Wyoming have provisions similar to that of our own state limiting the term of office of district judges to a specified number of years, and the courts of those states have held that a district judge may settle a bill of exceptions after his term of office expires in cases tried before him while holding the office. Stirling v. Wagner, 4 Wyo. 5, 31 Pac. 1032, 32 Pac. 1128, is a well-considered case, in which the authorities are reviewed at length, and, in the course of the opinion, the court, speaking through Chief Justice Groesbeek, observes:

“The bill merely recites what occurred at the trial which is not of record, and is a mere narrative or historical account of those events. In some states, by consent of the parties, the clerk of the court may sign the bill, in others, where the judge is dead or disabled, two attorneys may allow and sign, while in others, in case of grave disputes, the hill may he settled by the testimony of bystanders or members of the bar. . . . When allowing a bill, the court does not pronounce a judgment; it merely states that the exceptions taken in the bill actually occurred during the progress of the trial.”

The Supreme Court of Colorado, iu the case of Water Supply Co. v. Tenney (Colo. Sup.), 40 Pac. 442, after referring to the conflict of authorities on this question and citing a number of decisions from the states.which have adopted and adhere to the contrary rule, cite, with approval, the case of Stirling v. Wagner, supra, as well as decisions from other states which uphold and declare the same doctrine therein announced, say:

“We think those authorities which recognize the power of the judge to settle a bill after he ceases to hold the office are grounded upon the better reason, and that the rule is more consonant with the liberal spirit of the code in observing the substantial rights of the parties to an action and disregarding technicalities. It saves expense to litigants, and avoids waste of time, yet preserves to the parties their substantial rights equally as well as does either of the methods.”

Tbe settling and signing a bill of exceptions being purely a matter of procedure, we bave no hesitancy in bolding that tbe Legislature may, by statute, regulate such procedure, and especially in view of tbe fact that there is no constitutional provision which either limits or prohibits such legislation.

Section 9, art. 8, Const. Utah, provides in part as follows:

“From all final judgments of the district courts there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law.”

It will thus be seen that the Legislature is not only not prohibited from prescribing rules and regulations governing the appellate procedure in this state, but is expressly authorized to “provide by law” how appeals shall be taken. And the settlement of a bill of exceptions by a district judge in certain cases after the expiration of his term of office is one of the “regulations provided by law.” The motion to strike the bill of exceptions from the files is therefore overruled.

David L. Davis, one of defendant’s witnesses, on direct examination testified that he was, and had been for many years, familiar with the waters comprising defendant’s resort; that “the first few hundred feet of the bottom of the lake is nearly dead flat, and then beyond that the pitch is a little more; a gradual pitch. There are no jump-offs; just about as gradual as you can make it. I never found any holes; never observed anything of that sort. It is impossible to have a hole remain long, for the sand would fill it up. That is my observation. . . . Have been in storms there hundreds of times. I have had some experience. I do not know that it has been very perilous. I have not seen much danger. It (the wind) does not produce any perceptible change upon the bottom of the lake.” On cross-examination he testified in part as follows: “It is . . . possible that I said that Mrs. Larkin said, Is the lake dangerous ?’ and I said in reply to her, ‘Yes, it is dangerous, and particularly in a storm.’ Q. And then didn’t you say that, Ut is a dangerous place there, because there are holes and bars, and the water gets deep in places, and there are no nettings or guard lines, and I have bad time and again to bring in people with nay gasoline launch, and the company hasn’t as much as paid for a gallon of gasoline for me V A. I don’t remember saying a thing like that. I did not mention this part that I had always picked up bathers there because it was dangerous. Q. Did you not state at that time and place [referring to a conversation between witness and one M. P. Wells] that as a result, that is, of the sands shifting and bars being formed from one to two feet and a half in twenty-four hours, making holes, and by reason of the rough water and the waves, bathers at Saltair got into danger, and that you and your son had picked up between thirteen and fifteen persons? (This question was objected to as irrelevant, immaterial, and incompetent. Objection overruled.) A. No. I didn’t make any statement just that way. Part of it would be like that. I will explain that, owing to the shifting of the current in and off-shore wind many bathers got into danger on account of being drifted out, and that my son had picked up many that were in apparent danger. The shifting sands would not be included in my statement.” Witnesses were called and testified in rebuttal, over the objections of defendant, to having heard the witness Davis make the statements to which his attention was called by the foregoing examination and which were denied by him. The action of the court in overruling the objections interposed to this testimony is now assigned as error. Davis, having testified on his direct examination that he was familiar with the lake, that he had been there hundreds of times in storms, that he had had some experience, that he had not seen much danger, and did not know that it (his experience on the lake) was very perilous, plaintiff had a right to cross-examine him fully on this branch of the ease. This testimony tended to show that the part of»the lake comprising defendant’s bathing resort was practically free from danger to its patrons who bathed therein, and was evidently introduced for that purpose, and also for the purpose of neutralizing and overcoming the effect, if any, produced on the minds of the jury by the evidence introduced by plaintiff which tended to show that at times, and under conditions as they existed at the lake when the unfortunate circumstance under consideration occurred, bathing in the waters of the resort is dangerous, and extremely so to those wbo happen to get into deep water. We are therefore clearly of the opinion that, in view of the testimony given by this witness in his direct examination, the cross-examination referred to was not carried beyond the scope which the authorities uniformly hold may be taken in the cross-examination of witnesses generally. Nor do we think the court erred in permitting plaintiff to introduce evidence tending to show that the witness Davis had on former occasions made statements contradictory to and inconsistent with his testimony given at the trial, which statements he denied making; his attention on cross-examination first having been specifically invited to the time, place, and circumstance of each conversation in which it is claimed they were made. This testimony was admissible for the purpose of impeaching Davis. Counsel for appellant contend, however, that the questions did not relate wholly to matters of fact, but in part call for the conclusions of Davis, and were therefore incompetent, and could not properly be used as a basis to impeach him. By an examination of these questions and answers it will be seen that the matters covered by the questions which counsel claim are objectionable (that bathers got into danger, etc.) were answered by Davis in the affirmative. It was only those alleged statements of his respecting material facts in the case that he denied. As to these statements plaintiff was entitled to introduce proof, and because the questions asked for the purpose of impeachment referred to some statement not denied by Davis is not a ground for reversal.

At the conclusion of the evidence the defendant requested the court to instruct the jury to return a verdict in its favor. The refusal of the court to give this instruction is assigned as error. It is urged on behalf of appellant that it does not appear from the record that the death of Roy E. Larkin was due to any negligent act or omission of defendant. The undisputed evidence in this case shows that the bathing season at this resort is limited to about three months in each year and that during the year (1903) when Larkin was drowned 50,000 of the patrons of this resort went in bathing, and it is admitted that there were no notices placed in the lake indicating the depth of the water, nor signs of any kind to advise the bathers of the limits of the resort within which they could batlie with safety; ueither did it keep at the resort a person with the necessary appliances to rescue bathers from drowning when in danger. In fact, the only supervision exercised by defendant over its patrons who bathed in its resort, as shown by the evidence of its general manager, J". E. Lang-ford, was to invite and carry them out on the raft to “deep water.” Efom that time on the bathers were left to shift for themselves, and, as stated, no means of rescue was provided by defendant, in case any of them, through lack of information, inadvertence, or otherwise, got into water beyond their depth, or a storm arose, or their situation was otherwise rendered perilous. And there is abundant evidence in the record which tends to show that an agent of the company had notice an hour or more before sunset of the peril that deceased and his companion, Boss Wells, were in, and that no effort was made by defendant to rescue the boys until about 9 o’clock that night. It is well settled that the owners of resorts to which people generally are expressly or by implication invited to come are legally bound to exercise ordinary care and prudence in the maintenance and management of such resorts to the end of making them reasonably safe for the visitors. And when the business is that of keeping or carrying on a ' bathing resort, the authorities hold that the proprietors or owners thereof are not only required to exercise that same degree of care and prudence with respect to keeping the premises in a reasonably safe condition, which thelawimposesupon keepers of public resorts generally for the protection of their patrons, but the law imposes upon them the additional dutyX when the character and conditions of the resort are such that because of deep water or the arising of sudden storms, or other causes, the bathers may get into danger, of having in attendance some suitable person with the necessary appliances to effect rescues, and save those who may meet with accident. Not only is it the duty of the owners of bathing resorts to be ^ prepared to rescue those who may get into danger while ih bathing, but it is their duty to act with promptness, and make every reasonable effort to search for, and, if possible, recover those who are known to be missing.

In the case of Brotherton v. Manhattan Beach Imp. Co., 50 Neb. 214, 69 N. W. 757, the decedent, with a companion, was bathing in defendant’s resort. The companion started to come in and discovered that Brotherton, decedent, was still in the water; thereupon he went back and looked for him among the bathers, but did not find him. He then went and notified the employees of defendant company of Brotherton’s absence. No effort was made to recover Brotherton, and he was drowned. In the course of the opinion the court said:

“We think it is a reasonable inference that persons of ordinary prudence, conducting a bathing resort frequented by 10,000 people a month, should, in the exercise of ordinary care, keep some one on duty to supervise bathers and rescue any apparently in danger; and,- if not, that certainly it is a reasonable inference that persons so situated should, on ascertaining that a person last seen in the water is missing —without a moment of delay — exert every effort to search for that person in the water, and not merely advise a youthful companion of the missing person to search on the land, and coolly watch the result of such search. We think, in this aspect of the case, and in this only, the evidence presented an issue which should have been submitted to the jury, and for that reason the peremptory instruction was erroneous.”

In Dinnihan v. Lake Ontario Beach Co., 8 App. Div. 509, 40 N. Y. Supp. 764, tbe decedent field a ticket entitling fier to batfie in tfie waters of the lake adjacent to tfie beach. She was drowned in a deep pool near to a toboggan slide, constructed by defendant in tfie water. Tfie court in that case field, that

“The learned trial judge correctly instructed the jury that the defendant was bound to be active and exercise vigilance to keep the ground, whereon it invited its patrons to bathe, from becoming dangerous that this duty was an active one, and that the defendant could not escape liability by showing simply that it did nothing to produce the hole. These instructions laid down the rule of law applicable to the liabilities of keepers of bathing beaches.” (21 A. & E. Enc. Law [2 Ed.], 471, 472; Thompson, Com. Law Neg., sections 994, 998; Cooley on Torts, section 606; Boyce v. U. P. Ry. Co., 8 Utah 353, 31 Pac. 450, 18 L. R. A. 509; Hart v. Washington Park Club, 157 Ill. 9, 41 N. E. 620, 29 L. R. A. 492, 48 Am. St. Rep. 298; Richmond, etc., Ry. Co. v. Moore, 94 Va. 493, 27 S. E. 70, 37 L. R. A. 258; Thompson v. Street Ry. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323; Sebeck v. Platdcutsche Volkfest Verien, 64 N. J. Law, 624, 46 Atl. 631, 50 L. R. A. 199, 81 Am. St. Rep. 512; Conradt v. Clauve, 93 Ind. 476, 47 Am. Rep. 388; Peckett v. Bergen Beach Co. [Sup.], 60 N. Y. Supp. 966; Breeze v. Powers, 80 Mich. 172, 45 N. W. 130; Dunn v. Brown County Agr. Soc., 46 Ohio St. 93, 18 N. E. 496, 1 L. R. A. 754, 15 Am. St. Rep. 556; Francis v. Cockrell, 5 Law Rep. Q. B. 184.)

Applying tbe foregoing principles of law to tbe facts in tbis case, we are not warranted in bolding, as a matter of law, tbat tbe defendant was free from negligence. Neither are we prepared to say tbat tbe death of decedent was dne to bis own negligence. There is abundant evidence in the record to support a finding tbat when decedent and bis companions first discovered they were in water beyond their depth, and tbe storm bad overtaken them, they were about 185 feet from tbe float stand, and were entirely within tbe radius of territory in which tbe patrons of tbe resort usually bathed. Miss Pomeroy testified tbat, when she started to return to tbe pavilion to notify the people of tbe danger tbe boys were in, they were about 180 feet northwest of tbe float stand. P. A. Olson, a witness for tbe plaintiff, testified tbat be bathed in tbis resort quite frequently during tbe bathing season of 1903; tbat be walked and bathed around tbe float stand, and tbat about seventy-five yards to the north, and tbe same distance to tbe west and northwest of tbis stand, be could not touch bottom; tbat tbe water at these points was over a person’s bead. J. E. Langford, tbe then general manager of the resort, who was called as a witness by defendant, testified tbat to bis personal knowledge, the people, invitees of defendant company, bathed from two hundred to three hundred feet to tbe north and northeast from tbat point. He further stated quoting bis own language: “Some of them [referring to tbe bathers] bathed one thousand feet west; some of them north and northeast. Tbe company knew they were bathing there, and knew tbe depth of tbe water. . . . Three hundred feet from tbe pulley frame west and northwest tbe depth of tbe water was five and one-half feet, possibly six.” It is therefore conclusively shown tbat a point one hundred and eighty-five feet in any direction from tbe float stand would be entirely within tbe territory of tbe resort where tbe people, men, women, and children, usually bathed with tbe knowledge and consent of tbe defendant company. It cannot be held tbat decedent was guilty of contributory negligence, so long as be and bis companions remained within tbe territory to which they, and tbe people generally, were invited to bathe, unless they, with knowledge or notice of tbe danger, put themselves in a position of peril, which was not shown or attempted to be shown at tbe trial. Tbe undisputed evidence shows tbat when decedent and bis companions discovered they were in danger they made every effort in their power to return to the pavilion.

It is urged by appellant that the condition of the premises, such as the lay and character of the bed of the lake, the depth of the water, etc., as testified to by defendant’s witnesses, demonstrated that the deceased and his companions must have been out into the lake far beyond the limits within which the patrons of the resort usually bathed. These, however, were questions of fact for the jury to determine, and the jury having found adversely to the defendant on these, as well as all other issues of fact in the case, the verdict cannot be disturbed, there being ample evidence in the record to support it. There are other errors assigned, but we think they are without merit, and therefore deem it unnecessary to discuss them.

We find no reversible error in the record. The judgment, is therefore affirmed, with costs.

STRAUP, J., concurs.