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Show Unvl'sit7o Uth Librnri Salt Lkr City, Ut-- h ft r, WW 1 M12 : S , - co 77? 3Upe VOLUME 15, NUMBER 51 Tuesday, March 16, 1971 LEGAL NOTICES: Plmt 417-065- Legal Newspaper LAKE SALT 1 CITY, UTAH In The Supreme Court Of The State Of Utah Jack Albert Wagner, Plaintiff and Appellant, v. Earl vs ROBERT servicer) Credit Corporation PUf$l24.44 CALRSON; ; D Pltf$430.91 38747 ST. JE0R Plaintiff appeals from a judgment, upon a jury verdict, of no cause of action in his suit for the wrongful death of his three year, ten month old son. U-tu- Marjorle Rosen vs CLARENCE Pltf D. ANTHONY D. ANTHONY MEACHAM AND MRS. Co. R. M. Pltf$172.28; bal acct on 38750 - Rubber Supply Co. vs TANK AND MANUFACTURING ; account WESTERN Pltf$201.00 38751 - General Distributing Co. vs NEVA STRATTON fm!y dba LOUNGE; bal due Pltf$735.98 PROFESSIONAL Pltf ASSOCIATION; $248.50; account Rule 51, U. R. C. P., provides: . . . No party may assign as error the giving or the failure to give an instruction unless he objects thereto. In objecting to the giving of an instruction, a party must state distinctly the matter to which he objects and the grounds for his objection. Notwithstanding the foregoing requirement, the appellate court, in its discretion and in the interests of justice, may review the giving or failure to give an instruction. . . . DRIFTWOOD LOUNGE; bal due Co MILLER; Pltf 38756 Inc. vs BEN $442.00; note FF.SSENDC Pltf$117.56 BODY SHOP; account note 198247 LEE Pltf$1500; $620.33; - James Jouflas vs STATE INC; Writ of - Herbert Babble vs 198248 RICHARDS LINCOLN MERCURY 38758 - Collection Unlimited Agency vs DONALD C. STEFFEY; Pltf$31.90 note - Dr. Ceorge THOMAS V. L. JENSEN Hinckley, M.D. AND SI'S AN Pltf$42.00; professional 198250 - Acme Fence Co. Inc. vs CARNICERO DYNASTY CORPN; RAY - State of Utah vs Pltf CLARK; GRIMAUD ; ROGER - State of Utah vs 198253 FLORENCE GDN OF ROSALINDA Pltf$$304.42; $1,680.74 repayment - State of Utah vs lien on property 198254 JOSEPH - State of Utah vs FRANK ZTNN; support payments 198255 CLAYTON 198256 - Linda Lillle and State of Utah vs JOSE CHACON, support payments - Fireman's Fund Ins. 38761 - L. SWAPP; Salt Lake City vs REED CHRISTENSEN; auto damage CO. JARED Pltf$350.38 Pltf$259.37; auto CORY damage District Court 198235 - Western States Thrift & Loan Company vs KASHMIR OIL INC AND INTERMOUNTAIN TRANSFER CORP Pet. for transfer of stock Ann M. Congdon Pltf vs ROBERT $5, 000. 00; agreement Pltf$285.00; - Pauline 198261 ". S. SILVER damages & C. Moss vs MINING CORPORATION 146.11; bal due Flt$1, - Young Electric Sign Co. C. THOMPSON DBA BIG SCOOP ICE CREAM; Pltf $2, 083. 72 198262 vs RAYMOND $750.00; agreement 198263 - First Security DAVID E. BECK; Bank Pltf of $1 , 036. 01 $24.00; $300.00; bal due Small Claims Court 28425 15 - Jeff Thomas and f. II Al'luMUllVL; faulty workmanship deed BARTON 198260 - Louise Heath and State of Utah vs DONALD HEATH, support Pltf$4,526; EXPLORATION. INC. PHILLIP C. WHITEHEAD. STEVE F,. ROHLRTS ASAEL T. SORENSEN, GARY OLSEN AND JOHN DOES 1 thru 5; Blanch! vs bal due bal due 198238 - Kenneth C. Hansen and Margaret L. Hansen vs UNIVERSAL Huko Co. Pltf 198259 - Jack J. Warner dba Composition Services Center vs JOSEPH L. SLOAN; Pltf $ 2, 058. 84 CORPORATION AND KURT H. WEGNER ELEANOR WEGNER; Pltf trust - 198258 CHAPPELL; $376.42; note $1,340.45; Utah vs 198237 - Utah Retail Credit Bur. vs NORTH AMERICAN CHINCHILLA AND BILLY $967.00; repayment - Patricia Grimaud and 198252 38760 - Charles E. Brownrigg and Ruth J. Brownrigg vs LESLIE ROLEN Pltf$228.00; property damage - Co. ALLEN DBA ALLEN AUTO Pltf$222.02; $90.67; bal 198257 OLSEN; INC; agreement, etc - David Distributing vs VIRGINIA R. 198236 DON B. GILL; $33,939.90; $2,864.20; r 198246 - Farmers Insurance Exch. and Craig A. Swenson vs SCHUYLER MONTOYA HANSEN, rental agreement Suits tno Pltf$482.08 $50.00; auto damage MONTOYA; BARRY MARY Pltf$3,521.09; support DBA B & L N 38763 - George A. Abeyta vs pege - John Chidley vs State of Utah vs Peter Lawrence Assoc. HAIGHT; There is nothing in the record to indicate that plaintiff requested such instruction. Furthermore, and of prime importance, plaintiff has asserted the concept of wilful and wanton misconduct as a ground upon which to predicate liability for the first time on appeal. Matters neither raised in the pleadings nor put in issue at the trial cannot be considered for the first time on appeal. In Simpson v. General Motors Corporation6 this court held that a party may not inject a new doctrine upon which to predicate liability for the first time on appeal. This court stated: 198245 ANN ROSQUIST; 198251 38762 - Wallace Parkin vs Plaintiff urges that the trial court erred by its failure to instruct the that contributory negligence does not bar a recovery by plaintiff for jury injuries proximately caused by defendant's wilful and wanton misconduct. TENTH through DOE Pltf$810.00; $330.00; Pltf$55.00; business license ' ALTA FLYING agreement Pltf$111.30 WYLLIE MANUFACTURING Plaintiff has not complied with the requirements of Rule 51, U. R. C. P., and, on appeal, he has not sustained the burden to show special circumstances that would warrant a departure from the rule, i. e. , he has failed to indicate a persuasive reason to invoke the discretion of this court to extricate a person from a situation where some gross injustice or inequity would otherwise result. FIRST PARTS; 38754 - Joseph Schlitz Brewing vs STEVE PAUL ANZURES DBA services or No. 22. Flying Service Thompson WILLIAMS, 198249 Pltf $433.80; account JENSEN; 16 - GENE vs D. V. The defense was buttressed on the theory that under the physical facts even a person with normal reactions, unimpaired by alcohol, would have been unable to avoid striking the boy. Defendant further pleaded that plaintiff was contributorily negligent in that he failed to exercise reasonable care of his son Plaintiff did not elect to take an exception to either Instruction No. 198244 Pltf Rescission of 58753 - Newspaper Agency Corp vs SPENCER C. WHITNEY, JR. DM OLYMPUS ALTO SALES; vs vs SILVER Pltf $2, 000. 00; Mandate 38752 - Owens Corning Fiberglas Supply and Contract Dlv. vs DOWNTOWN 38759 Pltf ELECTRONIC $ 1574. 75; TRANSFER AGENCY. 38757 - Progressive Music Supply vs DOREEN NUESMEYER; Pltf$92.00 On appeal, plaintiff contends that the trial court should not have instructed the jury concerning contributory negligence because there were insufficient facts adduced to justify such an instruction. J. Cutler vs CORPORATION; TUCKER; 38755 - Peter Lawrence Assoc. Tnc vs BOB HTLLER AND KERRY J. under the circumstances. Pltf Pltf$1,544.94; $1,544.94; Plaintiff's theory of this case, which was reflected both in his commatters put in issue at the trial, was premised exclusively on defendant's negligent operation of his vehicle in the following particulars: failure to keep a proper lookout, failure to keep the vehicle under proper control, driving at excessive speed under the prevailing conditions, driving under the influence of alcohol so as to be incapable of observing, responding, or reacting as would a normally prudent person under the circumstances. plaint and in the UTAH AGENCY AND $694.02; $694.02; (4 cause of action) rn EMBASSY Pulley Ben H. Booth CLUB AND - Commercial Collection MEACHAM; B. CONSOLTDATT.H COMPANY; COMPANY; - 198243 WING vs Pltf$85.00 R. vs stock damages and $3.83 per day; rent and damages Defendant was proceeding in a northerly direction on Highway 91, in the same direction as plaintiff's vehicle was parked. Defendant was traveling at a speed of approximately 39 miles per hour in a zone. One or more other vehicles were also parked near plaintiff's car. According to defendant, as he passed the parked cars, the boy suddenly darted out onto the highway and was struck by defendant's vehicle. The boy succumbed from the injuries he sustained, shortly thereafter. Evidence of a blood alcohol test Deindicated that defendant was under the influence of intoxicating liquor. fendant admitted consuming liquor prior to his operating the vehicle. - K. 198242 ST. JEOR; AND MARIE MARTINEZ; ld INC. SPECIALTY 38748 - A. 0. Olsen vs 38749 vs M. Dallas Owen W. RESOURCES, Buranek, $750.00; bal due MARTINEZ AND MRS. Plaintiff was proceeding in a southerly direction, after dark, at about seven o'clock in the evening, in his automobile on U. S. Highway 91, in Layton, Utah, on November 1, 1964. He observed an automobile accident; so he continued to an area where he could make a and returned to the vicinity of the accident, parking his vehicle on the opposite side of the road. He parked in such a manner that his vehicle extended approximately two feet onto the edge of the pavement of the north-boun- d lane. This area is bounded by fields, and there is no street lighting to illuminate the immediate vicinity. Plaintiff left his three-year-oson, strapped by a seat belt in the vehicle, and crossed the four-lan- e, divided highway to the site of the accident. A highway patrolman and several other people were in attendance at the accident, and there was no evidence to indicate that plaintiff's assistance was required; nevertheless, he remained for approximately 15 minutes at the scene, leaving his son alone in the car. $1 , 894. 86 of Mandate $900.00; rent Since it is our duty on review to accept as fact that evidence and the reasonable inferences to be drawn therefrom which supports the jury verdict, we will recite the facts accordingly. Pltf INC; AND REGISTRAR Pltf$490.71; $180.00; Chief Justice: HYDRAULICS AND BRIMCO and Halcyon agreement C A LUSTER, vs Company 198241 - David M. Thomas G. Buranek, 38746 - Zlons First National Bank vs WHITNEY K. HANSEN L. M. Cummings, Clerk 198240 - American Coil Spring bal due $160.00; contract C. Olsen, 1 Matilda Sennhauser vs DOROTHY LOUISE WAYMAN ; Pi tf$ 1,000; $20,000; pers injury ENGINEERING AKA MRS. CAROL AND E RSON M'TCllE R AKA GORDON BUTCHER March 11, 1971 Defendant and Respondent. 38744 - American 38743 - South East Furniture Co. vs MRS. ROBERT L. ANDERSON No. 12094 FILE Credit Corporation Pltf$65.25; HANS LUBCKE ; services 417-065- - Carl Senuhauser and 198239 38743 - American Pkoiw Suits District Court Harold G. ChriBtensen vb NOTICES: LEGAL Suits City Court Plaintiff claims prejudicial error Result: Trial court judgment affirmed. Plaintiff counsel David E. Wagner Defendant counsel Daiy Kristy L'lLLvtOO.Ov; |