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Show MONDAY. NOVEMBER 4, 1974 PAGE ELEVEN. INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The State of Utah Answering 3) first: There is nothing in the record showing any prejudice. Hansen's main contention was that certain statements, if introduced, would be prejudicial. State counsel said no such statements would be - nor were they offered. Nothing save by the grace of dangerous 1 assumption, would indicate that the trial judge abused his discretion. As to 1) above: Two onlookers said two of the jurors consciously to went sleep. The trial judge, not charged with somnambulism, in denying the motion for mistrial, said that he had observed the whole jury; that one had not gone to sleep, and the other did "doze for a second, twice" but had aroused before he, (the judge) "had a chance to call it to her, (the juror's), attention." Hence there seems to have been nothing in the eyes of the beholder, nor in the arms of Morpheus reflecting that the juror could have been ensconced, so as to have stupefied the veniremen, or the sound dis- cretion of the trial judge. 2 See Title Utah Code Annotated 1953; State v. Faulkner, 23 Utah 461 2d 257. P. 2d 470 (1969); State v. Miller, 111 Utah 255, 177 P. 2d 727 (1947). 2. State v. Mellor, 73 Utah 104, 272 P. 635 (1928). It is interesting to note that it oral argument counsel for the defense, nor anyone else recognized the significance or sagacity of one of the Justice's inquiries as to whether the slumber of the jurors occurred during the case in chief or during the defense's examination, the answer to which was that the Van Winkle incident was appurtenant to the State's presentation, no credit to the State or prejudice to defendant. 1. 77-31- -6, Carolyn S. MacKenzie, Plaintiff and Respondent, As to 2) above: The jury foreman asked the court: "What is evidence, considered evidence, in regard to missing items?"3 The trial judge said: This is circumstantial evidence. Nobody saw the saddles out. And you may consider all of the evidence surrounding go the event, that they were there the day before, and they weren't there the next morning, and the time involved and any people who might have been around, and determine from that whether they were taken and if so who took them. You may consider that as some. evidence on the subject. Any other questions? Such statement was quite consonant with the facts adduced, and a sort of facetious covenant running with the land. Hansen's counsel objected, claiming that a) Buch instruction should have been in writing, failing which, it violated Rule 51, Utah Rules of Civil Procedure; that even so b) it erroneously stated the law, - with which latter contention we disagree without comment, particularly when read along with other instructions given. In a) above, where the instruction or answer to a question of the jury, silly or not, is given after, the jury has retired. Rule 47(n) U. R. C. P. governs, where, as here, if the jury desires "to be informed on any point of law Such information must be given in writing or taken down by the reporter." The reporter took it down. The court was not in error under the procedure andor ... instruction mentioned. 3. No. 13636 FILED v. October 30, 1974 The Mutual Benefit Life Insurance Company, Defendant and Appellant. Allan E. Mecham, Clerk TUCKETT, Justice: In these proceedings the plaintiff seeks to recover the death benefits provided for in a double indemnity provision of the life insurance policy on MacKenzie. The court below entered judgment in her husband, Thomas favor of the plaintiff and the defendant appeals. The particular provisions of the policy we are here concerned with are as follows: ADDITIONAL DEATH BENEFIT. This provision is a part of this policy and is issued in consideration of the payment of the premium payable. It provide, subject to the terms of this provision, insurance payable at the death of the insured as part of the proceeds of this policy upon receipt of due proof that the death of the insured resulted directly, and independently of all other causes, from accidental bodily injuries . ... ... Risks Not Assumed. The insurance under this provision will not be payable (a) if death is caused or contributed to by one or more of (1) suicide, or any attempt at suicide, while sane or insane; (2) intentional injury of any kind, while sane or insane. self-inflict- ed The insured, Thomas W. MacKenzie, was employed by Merrill, Lynch, Pierce, Fenner Smith, Inc. , and in early 1971 he went from his home in Ogden, Utah to New York City to attend a training school for employees of the brokerage firm. On April 1, 1971, Thomas W. MacKenzie suffered fatal injuries when he fell from a window of the hotel in New York City where he and other trainees were housed. Prior to April 1, MacKenzie and one William Reilly occupied a suite of rooms on the fifth floor of the hotel where each had Billy Kay Terrel. Plaintiff and Respondent. v. No. 13584 FILED October 29. 1974 . Obviously referring to 3 allegedly missing saddles. a separate bedroom and shared a sitting room. Mr. Reilly in his deposition testified that during the evening prior to the incident he and other students had gone to dinner together and had attended a movie, and upon his return to the hotel about 11:30 p.m. , MacKenzie was already back in the rooms. Reilly went to bed leaving MacKenzie in the sitting room reading letters. In the early morning hours Reilly was awakened by running water and the sounds from the radio and television set. Reilly inquired of MacKenzie whether or not anything was wrong and was informed that everything was all right. A second similar episode occurred during the night. At about 7:00 a.m. MacKenzie entered Reilly' s bedroom and scuffled with Reilly telling Reilly to wake up. Bizarre conduct on the part of MacKenzie occurred such as his crawling on the floor and talking about Lt. Calley in Viet Nam. Reilly became frightened and ran to the floor above and awakened other students. While in the room above he ' heard the sounds of things being broken in the room below and also the sound of breaking glass. One of the persons in the room opened a window and the body of MacKenzie was observed on the sidewalk below. Reilly returned to the suite which he and MacKenzie had occupied and found it In shambles. Physical evidence indicated that MacKenzie had apparently partially gone, through the drapes and through the Venetian blinds and the window. The window in question was at the end of the sitting room and was about three feet above the floor. Below the window there was a heating appliance against the wall. found that MacKenzie was mentally deranged at and prior to his fall from the window. The court also found that the deceased was not bent in going through the window. The court concluded-tha- t on MacKenzie did not commit suicide. The self-destructi- trial court on It is the defendant's contention that the only conclusion the evidence will support is that MacKenzie leaped through the blinds and the windows and that he intentionally rather than accidentally fell to his death. present to witness what went on in the room immediately prior to MacKenzie's fall nor to MacKenzie 's activities immediately prior thereto. It is clearly indicated that the death of MacKenzie resulted from the injuries he suffered from the fall from the window to the pavement. The burden No one was was on the defendant to show that MacKenzie committed suicide and benefits for That burden has his accidental death were excluded by the terms of the policy. not been sustained by the defendant. The decision of the trial court Respondent is entitled to is affirmed. costs. 1. Browning v. Equitable Life Assur. Soc. , 94 Utah 570, 80 P. 2d 348; Griffin v. Prudential Ins. Co. of America, 102 Utah 563, 133 P. 2d 333. divorce based not only on default, but upon evidence adduced, at a where Mrs. T's own mother testified that she felt and desired that hearing Mr. T, her not her daughter, should have custody. After the divorce the parties tried reconciliation, which shortly failed. A son-in-la- w, r Linda Susan Terrel, now known as Linda Susan Frandsen. Defendant and Appellant. HFNRIOD, Allan E. Mecham. Clerk Justice: Appeal from an order continuing custody of a minor child in plaintiff, awarded in a divorce matter, - the order resulting after defendant had obtained an order to show cause why such judgment should not be modified and custody a.warded to her on grounds of changed circumstances. Affirmed, with no costs awarded. The parties hereto were married four and one-ha- lf months before their, one-haA lf and was born. T child female later Mr, filed for divorce. year Summons was served on Mrs. T, who, thereafter sought paid legal advice, but was not represented by answer, other pleading or counsel before a timely ' divorce decree was entered. After the filing of the complaint, Mrs.. T left town, and her mother 'delivered the baby to plaintiff, who then amended the complaint, seeking custody. The record reflects that Mrs. T was served and had actual notice of the complaint and amended complaint. Elroy Wulfenstein and Mervyn K. Cox, Plaintiffs and Respondents, No.k 13617 FILED October 25, 1974 As to her second, and only other point on appeal, the Court took testiand made reference in his summing up to the recommendation of Mrs. T's mony mother, that Mr, T, rather than her own daughter have custody of the child. There is ample competent evidence to sustain the Court's finding that custody should remain with Mr, T, stating that he had to "attempt to analyze the facts whieh are brought out" and "decide what's the best for thex interests of the child" and that he thought "it was not for the best interests of the child for the custody to be changed. " The judge then stated he would retain jurisdiction to determine the matter of any future change in circumstances warranting any disturbance of the existing record. Under the similar facts and results of this case we are constrained to and. do conclude that what is said in Hyde v. Hyde. 22 Utah 2d 429. 454 P. 2d 884 (1969). is dispositive of the instant case. HENRI OP, Justice: Appeal from a judgment specifically enforcing an option agreement the for purchase of a ranch, Affirmed, with costs to plaintiffs. The document, subject of this suit, is a Ellis Larson and Ora H. Larson, his wife, Defendants and Appellants. Defendant did not appeal from the divorce decree. After such failure, however, and without having tested the Court's jurisdiction to enter the decree, Mrs.' T took a country-lan- e approach by securing the order to show cause, which, of consequence, gave the Court complete jurisdiction over her and her child and her husband and the subject matter by asking the Court for relief. Allan E. Mecham, Clerk one-pag- e, printed option form designed to insert typewritten or handwritten data in the blanks to the salient terms of the agreement. show |