Touse v. Consolidated Ry. & Power Co.

80 P. 506, 29 Utah 95, 1905 Utah LEXIS 5

• Court: Utah Supreme Court
• Decided: April 11, 1905
• Docket: No. 1607
• Status: Published

Opinions

BARTCH, C. J.

This action was brought to recover- damages for personal injuries and injury to property alleged to have been caused through the negligence of the defendant. At the trial the jury returned a verdict in favor of the plaintiff in the sum of $600, and judgment was entered accordingly.

The questions presented on this appeal all relate to alleged errors committed by the court in the admission of testimony, > in charging the jury, and in refusing to charge the jury as requested. Counsel for appellant, in their brief, say: “We will only attempt in this brief to bring before the courj; the admitted evidence of respondent and his witnesses, and from this evidence we contend that it fully appears by every reasonable construction that could be given to the evidence that respondent’s negligence contributed to his injury, and that he has no right to recover.” Thus the real contention of the appellant is that, by every reasonable construction which can be given to the evidence, the plaintiff is shown to have been guilty of negligence which contributed to the injury, and that therefore he cannot recover. This contention, in our judgment, upon a careful examination of the assignments of error, embraces the only important question presented, which •is whether the evidence is sufficient to support the instructions given, and to warrant the refusal of the requests, by the court, one — and the principal one — of which requests was to charge the jury to return a verdict in favor of the defendant, “No cause of action.”

Questions of this character, the respondent insists, cannot be reviewed by this court, when, as here, they were not presented to the court below on motion for a new trial; and he relies on section 3304, Revised Statutes 1898, as amended by chapter 27, page 25, Session Laws, 1901. Section 3304, Rev-vised Statutes 1898, provides:

“Upon an appeal from a judgment all orders, rulings, and decisions in the action or proceeding to which proper exceptions have been taken in the court below or which are deemed excepted to are before the Supreme Court for review.”

Under this section, before its amendment, this court held that, in the absence of a motion for a new trial, the testimony could not be examined on appeal to determine errors alleged to have been committed at the trial. In Thompson v. Hays, 24 Utah 275, 61 Pac. 670, where it was not clear from the record whether or not a motion for a new trial had been made and ruled upon it was said:

“We cannot assume that the errors now complained of as having occurred upon the trial were the grounds relied upon for a new trial. All presumptions are in favor of the lower court. (Mc Kay v. Farr, 15 Utah 261, 49 Pac. 649.) So far, then, as this record is concerned, there has been no motion for a new trial interposed or ruled upon, and we therefore cannot consider the testimony, and have no means of determining whether any errors occurred upon the trial, 'or whether the findings of fact are supported by the proof.” (Swenson v. Snell, 22 Utah 191, 61 Pac. 555.)

The section as amended by the act of 1901 reads:

“Upon an appeal from a judgment, all orders, rulings and decisions in the action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to as provided by this Code, are before the Supreme Court for review, and in equity cases any question of fact, shall be reviewable by the Supreme Court without a motion for a new trial, and in all cases at law tried before the court without a jury, all questions of errors in findings of fact and conclusions of law legally reviewable by the Supreme Court, shall be before the Supreme Court for review without a motion for a new trial, and either party to the appeal may assign any errors in findings of fact or conclusions of law, or that any findings of fact by the court are not supported by the evidence, on appeal to the Supreme Court, without filing a motion for a new trial in the court below.”

It will be noticed that the new enactment, to and including the word “review,” is practically in the same language as it was before the amendment, and that to this is added a proVision changing the then existing law on this subject as to cases in equity and cases in law tried before a court without a jury. The Legislature, thus mentioning these two classes of cases, and making no reference whatever to jury cases,, clearly evinced an intention that in the latter class of cases the practice should remain as it was before the amendment, and that in cases tried before a jury, where the court is compelled in most instances to rule without time for reflection, errors, committed during the course of the trial, raising questions dependent upon the evidence for determination, should not be considered in the appellate court unless the court below had been afforded an opportunity to correct such errors by motion for a new trial. Doubtless the reason which actuated this distinction and the change in the rule of practice is found in the fact that in the trial of causes before a court without a jury the court has a better opportunity, in passing upon questions arising in the proceedings, for’ reflection and deliberation, than it has in causes tried before a jury, and in the' further fact that, as a general rule the court, in causes tried without a. jury, is presumed to consider, in making its decree or decision, only competent evidence, while it is otherwise as to jury cases. This court recognized the force and effect of the amendment in the case of Paulson v. Lyon, 26 Utah 438, 73 Pac. 510, which was an action at law tried before the court without a jury; and the respondent contended that, because the appellant had made no motion for a new trial, he was not entitled to have a review of any of the alleged errors which had occurred at the trial. Mr. Justice McCarty, after referring to the constitutional and statutory provisions on the subject, and construing the amendment in question, said:

“As section 1, chapter 27, page 25, Session Laws 1901, in no way conflicts with the provisions of the Constitution, therefore the appellant is entitled to have the case reviewed to the same extent as though he had made a motion for a new trial, and the same had been overruled. The case of Thompson v. Hays, 24 Utah 275, 67 Pac. 670, and other decisions of

this court relied upon by respondent in support of his contention on this point, were appealed before the foregoing statute became a law, and hence do not control in' this case.”

From these considerations, we are clearly of the opinion that, under our statute, errors dependent upon the evidence for determination in jury cases cannot be considered on appeal unless the same were presented to and passed upon by the trial court on motion for a new trial. The record in this case presents no question prejudicial to the appellant which this court can consider.

The judgment is therefore affirmed, with costs.

McCARTY, J., concurs.