White v. Newman

348 P.2d 343, 10 Utah 2d 62, 1960 Utah LEXIS 131

Opinion

HENRIOD, Justice.

Appeal from a judgment in favor of plaintiff for damage to his motorcycle in a nonjury case. Affirmed, with costs to plaintiff.

Plaintiff drove his motorcycle into defendant’s service station and asked the attendant to fill two gas tanks. He did. not cut his motor. One tank was filled, and there is evidence to the effect that while filling the second tank the attendant in turning his head, spilled gas' onto the hot engine. The trial court, whose function it was, found that this was the case and that the ensuing fire would have resulted even though plaintiff had turned off his motor, and hence was the sole proximate cause of the damage. This being so, under familiar rules of appellate review, we will not disturb the finding.

As to the error assigned that there was no competent evidence as to amount Of the damages, the figure arrived at being based on a hearsay estimate, there was no objection voiced to the admissibility of such evidence, and we are not obliged to entertain such error, since hearsay evidence as to such value, unassailed, is. competent. In this case, had objection been made, the plaintiff would have had an opportunity to call witnesses to prove such value.

CROCKETT, C. J., and WADE and CALLISTER, JJ., concur. McDONOUGH, J., concurs in the result.