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Show MONDAY, APRIL 1,1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE NINE In The Court Of The State Of Utah Supreme Decision Affirmed Personal Injury Joey II. Gilhespie, a minor, by Arlene Gilhespie, his Guardian ad Litem, Plaintiff and Counsel een seeking to recover damages for breach of contract and, in the alternative, for a violation of the Utah Securities Law. After a trial was had the court entered judgment for the plaintiffs, and the defendant Quinlan appeals. No. 13400 FILED March 27, 1974 v. Martin DeJong, Joye DeJong, and Deloris DeJong, Defendants and Respondents. Counsel: L. E. Midgley- - During the year 1970, Albert Zeller commenced a business which consisted of rendering a particular type of service to grocery stores. The service consisted of collecting coupons used by manufacturers and food processors in promoting the sales of their products, which were redeemable by them. Zeller' s service consisted of sorting the coupons collected from the grocery stores and forwarding the same to the manufacturers and processors for redemption. The money received from the redemption of the coupons was sent to the grocery stores and a handling fee charged for the service. The service was planned on a nationwide basis, and Zeller sold franchises to others to solicit coupons from the stores In particular states. Zeller also contracted with others to sort and count the coupons collected. The plaintiffs are those who purchased franchises to carry on the business In certain states. L. M. Cummings, Clerk , CROCKETT. Justice; Joey Gilhespie, age 10, (by his mother as guardian ad litem) sued to recover for a broken arm, injury to his eye, and various abrasions, which he suffered when his bicycle was struck by an automobile driven by defendant Deloris DeJong. Upon a plenary trial, a jury rendered a verdict against him, no cause of action, and judgment was entered thereon. He appeals claiming: (1) that the trial court erred in instructing the jury; and (2) that there was no sufficient evidence to support the jury verdict. On the afternoon of September 4, 1968, the plaintiff was riding his bicycle easterly along the north side of 6100 South Street in Salt Lake County in the vicinity of Cedar Street (about First West). Involvement in play with other boys seems to have diverted his attention to some extent. He swerved his bike at one of the boys, who jumped out of the way, and then turned his ' bike back into the street, into the path of the car of the defendant who was coming westward, (at a slow speed, about ten miles per hour) which resulted trial, the court made findings which are to the effect that the defendant Zeller had the record amply supported by a was and managing number of corporations from his office In organized Ogden, Utah. One of Zeller's Utah corporations was known as Business Advisors Incorporated, and another corporation by the same name had been organised under the laws of the state of Pennsylvania, which was under the control of Zeller and was engaged In the coupon collecting business. In May of 1971, Zeller's companies sold their interest In the coupon business to Nationwide Services, Inc. , a defendant In these proceedings. It does not appear that stock was issued by any of the corporations controlled by Zeller, nor were meetings held by the directors or stockholders of the corporations. Funds were transferred from one corporation to another without any apparent! business or logical reason except to serve the interests of Zeller. The court found that Zeller's purpose when he established the coupon business was not to engage In a genuine or bona fide business to render services, but that his purpose was to sell franchises and to receive the Income therefrom. At the conclusion of the ' ... in the collision. : Plaintiff argues that the trial court failed to submit his theory of the case in the instructions to the jury, i.e. , that the defendant had a duty to see the plaintiff on his bicycle ahead of her on the highway, and that her negligence consisted in "failing to see the plaintiff in the path of defendant's car and to apply her brakes or swerve to avoid striking him." We agree with the doctrine advocated: that a party (plaintiff here) is entitled to have the jury instructed But this does not mean that it must in accordance with his theory of his case. be given in the exact language chosen by him. The requirement is met if the basic idea contended for is explained to the jury in ordinary, concise and understandable language. This purpose was accomplished by Instruction No. 15 . to thf sale of the coupon business to Nationwide Services, Inc. , of the business collecting, sorting, and redeeming the coupons had been so neglected by Zeller and the corporations controlled by him that numerous complaints were made by those who dealt with Zeller, which resulted In the Prior post office department cancelling Zeller's right to use the malls A number of lawsuits were threatened by persons who had dealt with Zeller and the business came to a halt which included: . . she had the duty to use reasonable care to keep a proper lookout for other vehicles, persons, and conditions, reasonably to be anticipated, and a duty to keep a lookout includes the duty to see and heed that which is plain to be seen. . The court concluded that Zeller had not intended to establish a bona fide coupon business, and that the corporations which he organized and co- ntrolled were not intended to be bona fide business corporations but were intended to serve Zeller's private Interests. The coujjt also gave the plaintiff the benefit of an instruction on last clear chance. r Plaintiff's second point is staled thit "then? is no substantial competent evidence to support the verdict of the jury. " It is to be observed that this proposition misplaces the burden of proof. That is, it seems to assume that there must be substantial evidence to support the jury's refusal to find 1. We recite the facts, as required by the standard rule of review, in the light favorable to the jury verdiit. Memmott v. United States Fuel Co., 22 Utah Zd 356, 453 P. 2d 15b. 2. See McDonald v. Union Pacific R. Co., 109 Utah 493. 67 P. 2d 685, and authorities therein cited; and Start in v. Madsen, 120 Utah 6 '31, 237 P. 2d 834. 3. See Graham v. Johnson, 109 Utah 346, 166 P. 2d 230; and discussion in Compton v. Ogden Union Ry. k Depot Co. , 120 Utah 453, 235 P. 2d 515. " The court further found that the defendant O. Dale Quinlan, who became Zeller's business manager, was$ully aware of the nature of Zeller's business and the manner in which the business was conducted, that he particl-- i pated in the sale of franchises to the plaintiffs who were his friends, that he owed a duty to them to make a full disclosure, and that his failure to disclose was in violation of the Utah Uniform Securities Act. The court found and concluded from the evidence that Zeller's business was selling franchises which were not dependent on personal services. 1 After a careful consideration of the record we conclude that the trial court correctly determined that the sale of the franchises came within the provisions of the Securities Act, and that the defendant Quinlan as well as Zeller sold the franchises to plaintiffs In violation of that act. for the plaintiff; whereas, the burden was upon the plaintiff to make the proof to justify a verdict for him; and if the jury were-noso persuaded by a preponderance of the evidence, they were not obliged to render such a verdict. 4 However, if this conflicting evidence is looked at from either point of view, there is an adequate basis therein upon which the jury could have reasonably believed that the defendant was guilty of negligence, because she used ordinary and reasonable care under the circumstances and could not avoid striking the child; further, that they could have similarly believed that the child himself was guilty of negligence which contributed to cause his unfortunate injuries. 5 t The judgment of the court below Is affirmed. to costs. Respondents are entitled Ellett, Justice, concurs in the result. WE CONCUR: E. R. Calllster, This case falls within these pronouncements we have often made: that the parties appear to have had what they are entitled to: a full and fair opportunity to present their contentions, and the evidence supporting them, to the court and jury, and to have a verdict and judgment entered thereon. When this has been done, all presumptions are in favor of the validity of the verdict and judgment; and this court will not disturb them unless there is substantial and prejudicial error, absent which there is a reasonable likelihood that there would have been a different result. & We find no such error here. Chief Justice Jr., F. Henri Henriod, Justice J. Allan Crockett, Justice -- . r 1, Section U.C.A. 1953, as amended; Silver Hills C.Club v. Sobieski (Cal. ), 361 P. 2d 906; Securities Regulation in Utah, Utah Law Review, Vpl. 8f No. 3, p. 216;-Statv. Bushard (Minn.), 205 N.W. 370. 1. 61-1-- e t t Affirmed. Costs to defendant (respondent). i 16 Utah 2d 344, 348, 400 P. 2d 570 (1970) and cases 4. See Smith v. Gallegos, cited therein. 5. As to contributory negligence of child, see Morby v. Rogers, 122 Utah 540, 252 P.2d531. , 6. Eager y. Willis, 17 Utah 2d 314, 410 P. 2d 1003; and see Hales v. Peterson, 11 Utah 2d 411, 360 P. 2d 822, and authorities cited therein. Law Printing 'Know-Ho- w' . . . comes from experiencel BRIEFS Ui. Supreme Sale of Franchises Violated Securities Act Claire D. Fullmer, Lloyd T. Anderson, Dean Peterson and John Gerfen, Plaintiffs and Respondents, Counsel i Darrell iJ. Renstrom, v, No. 13411 Ogden r 111 Court of Appeals Utah Supreme Court Like a patient in a hospital .... EMERGENCY SERVICE is REAL SERVICE L iu m XJ March 28, 1974 O. Dale Quinlan and Albert Counsel for Ojuinlani Bean, Bean ft Smedley, Layton Zeller, Allan E. Mecham, Clerk Defendants and Appellants, 7.noT.i Counsel i Stephen Parr, Ogden Nationwide Services, Inc., Third -- Party Defendant. when you need it! You get BOTH f at 1397 SOUTH MAIN, SALT LAKE CITY, UTAH 84115 Telephone rmmefeli Rodney Page, Clearfield TUCKETT. Justice: The plaintiffs commenced these proceedings In the Court 487-065- friiitm and PuNishm of district cdurt 1 THE DAILY RECORD |