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Show jpOORlGOPY PAGE SEVENTEEN INTERMOUNTAIN COMMERCIAL RECORD MONDAY, MARCH 25, 1974 In The Supreme Court Of The State Of Utah David Dallof, Administrator for Terry David Dallof, Deceased. Plaintiff and Res pondent , . July 27, No. 13369 FILED March Bert Robinson, dba Bert Robinson & Son Contractors, Defendant and Appellant. 19, 1974 N. This action wa brought by the .administrator of the estate of Terry David Dalloi for injuries received due to claimed negligence of the defendant. The death of ferry was in no way related to the injuries complained of. 2. The court erred in linding that Terry Dallof s injuries were caused by the wrongful act, neglect or default of defendant-appellan- t. i 4. The court erred in failing to dismiss plaintiff's action under Section 35-- 1 :58, Utah Code Annotated 1953. tui frbout the question of whether Terry ;;l no time he was injured. The trial jic was, and there was believable evi- The defendant did biisincxft i.ndcr the name and style of "Bert Robinson " He said he went as Uett Hnhinsun until his boy got older, and then Son. he put the name on of "Bert K.hi ison xi Soil. '' The son was not a partner. He drew money as he needed m !r,.is $50 prr week, plus child support of S75 ' per month. & t,c ..m suv: supervise employee. ing Terry how to operate 1. Sec. 35-1-5- 7, 2. Sec. 35-1-5- 7, -- ." The defendant now claims that the t'laintift cannot recover in this action because Terry, during his lifetime, tiled a claim tor workmen's U.C.A. 1953. This compensation insurance pursuant to Sect:mi statute permits an injured employee to iil tor compensation and requires an employer who does not carry workmen's compensation insurance to pay the award' made within ten days after receiving notice oi the same. 15-1-5- The answer to this contention is that it was not raised in the court below, and we will not consider it on appeal. The defendanl cannot ignore a proceeding which would undoubtedly have resulted in an award and defend an action at law and then if hi "loir nis ease claim that th action does not lie. The judgment is affirmed. r :! . .ortto irr tiwnrdod in un- WE CONCUR: U.C.A. 153 (I'i. J JV.cket Supplement). U..C.A. 1952 (MJ3 Po. et Supplement). he son r:rt::i-f- i )t nositioi was wkc:T. h I .; i -2, This statute does not moan that a party may not be called to testify to matters not pertaining to trannai tions with the deceased without opening up the matter so that the survivor may testify to forbidden transactions. It is when the administrator calls ihe survivor to testify to the transaction that the matter is opened up tor further testimony in that regard. The ruling of the trial court was correct in denying defendant the right to testify to transactions with the deceased. r, rv did have authority to hire and Dnjloi weic buddies, and he was teachId.'.iW. At the time of the accident rl- rr, .: lrn-.- There was also ample evidence to support the iinding of the trial court that Terry's injuries were c aused by the negligence of the defendant in that the hydraulic brake system ot the front end loader leaked brake iluid and would not brake properly when the fluid was low. E. R. Callibier, I? vftars of ajjf. Terry . :v ii !!. The trial court had ample reasons for believing and holding that Terry was in the course of his employment when he was injured. ( The defendant did not have workmen1 compensation insurance, and he would be liable fur his negligence which caused injury to workmen in the course of their employment and wuuld be denied the defenses of contributory 1 The statute2 negligence, fellow-serva- nt rule, and assumption of the risk. also provides that "proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligent e resulting in such injury. " Whi!o 41.7b 41.28 75.00 61.38 49.44 78-24- 3. The court erred in failing to allow Bert Robinson to testify to transactions with the deceased. rA 53.36 The defendant complains because he was not permitted to testify to transactions with the decedent, since he was called as a witness by the administrator of the decedent. He apparently believes that if he is called as a witness by the administrator, he then may testify to transactions with U.C.A. 1953, prevents a the dead man. Our statute. Section party to a civil action from testifying to matters equally within the knowledge of the witness and the deceased unless such witness is called to testify thereto by the' administrator of the estate of the deceased. 1. Tr.t: court erred in finding that Terry Dalloi was acting in the course of employment. use rnnlus 75 28 -- The defendant appeals frm an adverse judgment in favor of the plaintiff and claims error in the following particulars: was in the judge fitting without a jury found dence to sustain this finding. 4:. r). . L. M. Cummings, Clerk din put e in this course of his enipioymc 1968 August 2, 1963 August 8, 1968 August 16, 1968 August 24, 1968 August 30, 1968 September 6, 19o8 September 12, 1968 September 20, 1968 EL LETT. Justice; Ihe 25.92 54.43 15.49 July 12, 1968 July 19, 1968 lii-- i'i hil i i f M Q. y question vai h - ac idem happened. A. 1 sav& heT Q. Continue, please. the day th- A. Ab I ' xriiriiiu-tjo- rf i think th.-- : admitted that '.Oivs: F. Ile.nri Henrliv!, ir.btict ..lur, wab workiiig for oar company And what did you answer-- ' .1. Tt:rry and I were the only ones. Q. Isn't it true that you testified in your deposition that that morning, the morning of the accident, that you had been backfilling a pipeline Ogde.n City? Q. Isn't it true that yo testified that Terry was with you? A. Yes, he was with lufc'u-- h front-en- d loader on the semi. .. A. Apparently Terry was with me. The son testified at trial that 1 rty did not work the day of the accident - - that they were pals and Terr was around. However, they were to move loader and the semi truck. Hie. son said Terry was to drive the the front-en- d semi and he (the son) would move the loader and that he told Terry not to drive the loader. knew it. Despite that testiTerry had no li ensc to drive, and the son semi (he said to get coffee) the drove son the mony, the evidence was clear that and Terry drove the loader, which overturned as it was being driven off the highway down ramp andinjured Terry. The accident occurred September 19, 1968. Terry, checks as follows: The defendant had given .$ 41.00 No. 13352 FILED v. March 18, 1974 L. M. Cummings, Clerk Defendant and one Ruben Gonzales were convicted of the crime of bur1 glary in the second degree. Gonzales1 conviction was affirmed by this court. ' with it the Jublici CALLISTER. Chief Justice: nr. 4 July 6, 1968 The State of Utah, Plaintiff and Respondent, Teddy Lee Lybert and Ruben Gonzales, Defendants and Appellant. Yes. A. Wt backfilled the Allan r.r R. L. TurkrtT, far as I recall r A. '?".. Chiff Justice 2 On this appeal, Lybert maintains that the trial court erred in (1) holdthe arrest of defendant was lawful as well as the search of the vehicle that ing in which he was riding and (2) that the court erred in not disqualifying State 3 employees from sitting on the jury As to (1) we hold that the arrest and search were proper. Apartment , neighbors of the victim observed two men entering and leaving her apartment, whom they later identified as Lybert and Gonzales. Upon leaving the apartment house the two men got into an automobile and proceeded up an alley. About this time a police officer, in response to a dispatch call, arrived at the scene and was told by the witnesses where the automobile had gone. One of the witnesses informed the officer that the car was a "Thunderbird. The officer drove up the alley iand saw a "Thunderbird" with two men in it. He stopped the car, ordered the men out, placed them under arrest (after witnesses had identified them) and then proceeded to search the automobile, discovering items connected 11 with the burglary. The search. arrest by the officer was reasonable and proper4 and so was the As for (2), this issue is patently without merit. 6 Affirmed. WE CONCUR: Continued on page 18 |