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Show PAGE THREE MONDAY, JANUARY 26, 1970 Release of Mortgages 2316 Tr to Hainan Trusts 901 Valley 91 Prud Fed Sav Reed etuz to Prud Fed Sav to 915 Bk & Central Sav 929 1st 93 Fed Sav Webster etux D Joseph to to Marian Oscar St Sav etux 979 St Sav A etiu Reed etal C Jack-so- n Ut 960 Chrlstlson etux In The Supreme Court Of The State Of Utah Lewis L In to David Scott Crafts In to David Scott Crafts Pratt 2317 026 Safeway Young James Wood Fed Cr Em to Eugene D etux H Wood etux to Glen H etux In The Supreme Court Of The State Of Utah Keith Siddoway, No. 11521 Plaintiff and Appellant, minor, Plaintiff and Appellant, No. 11774 FILED January 21, 1970 v. - O37 Logan F. Carr, individually, and Logan F. Carr, as Guardian ad Litem for Jeff L. Carr, a to Walter Eisert D V Fed Cr etux Grant H Palmer etux to Vem E Pass etux 939 978 A Phillip Zlons 1st Nat Bk to John 937 to Fed Sav Walker etux Joseph Dale Bk etux Deseret 959 Bradshaw Chevrolet Company, a Utah corporation, and Collins Rowley, Defendants ard Respondents. ELLETT, Justice: This is an appeal from a summary judgment by the guardian of an boy whose claim for damages was as a matter of law held to be barred by the boy's own contributory negligence. The minor plaintiff was riding his bicycle northerly on the sidewalk in Cedar City, Utah, where he was required to ride by direction of the chief of police of the city. The individual deferdant, while in the ccurse of his employment with the corporate deferdant, drove an automobile from a parking lot east of the sidewalk onto the sidewalk and stopped thereon so that he could look for traffic beii-rdriving out into the street. A hedge and a fence along the of 'he parking lot prevented his view to the south until the front south s.de of his car was across the walk. He never saw the plaintiff child until after the collision. eleven-year-o- FILED v January 1 1970 9 Glens Falls Insurance Company and Western Insurance Service, Defendants and Respondents. . M. Cummings, Clerk L. M. Cummings, Clerk ld e HENRIOD. Justice: without a jury, in favor Appeal from a judgment by the court'sitting of GlensFalls, saying Mr. Siddoway was not covered by an insurance policy loss by fire. Affirmed allegedly issued by Glens Falls to insure hay against with costs to Glens Falls. contract for Siddoway urges on appeal that (1) there was an oral to be claimed such insurance, which was made binding by one Dearden, Glens Falls agent, who (2) had actual andor (3) apparent authority to act as such and in any event Glens F alls (4) ratified such policy, which (5) was enforceable because of public policy. If the facts do not disclose a contract certain, each of the five We believe and hold, points on appeal of necessity is without merit. are supported by competent, that the findings of the trial court reasonably substantial evidence chosen from the somewhat confusing and disputed Such Code. facts, and as affected by the provisions in our Insurance of facts as are necessary to arrive at the conclusion of this court and that the trial court fairly may be abstracted as follows: He sought out one Siddoway is a farmer who stacked some hay. that did not issue Dearden, an insurance agent licensed by two companies all the other fire insurance on hay unless extended the luxury of writing by insurance of Siddoway or anyone else. Dearden was not licensed and to he acquire the try presumed Glens Falls. On Friday, August 27, one Kemp, owner of desired insurance in the amount of $7, 000 through did not defendant. Western. Kemp was an agent for Glens Falls. Dearden would write the insurance, but left specify any company that he intended with whom he it to Kemp to acquire the insurance from some company which Kemp told had connections, but assumed it would be Glens Falls, didn't and him wrote hay insurance. Siddoway didn't care who wrote it would be covered know anything about Glens Falls. Dearden said the hay until weekend the Monday, over as of the 27th. Dearden did nothing in smoke. This went up August 30. On that day, at noon. Siddoway's hay he wrote event came to Dearden's attention, and immediately thereafter had told Siddoway that "we could Kemp a quickie letter advising that he and also advising Kemp that Siddoway's hay handle the insurance on it," would had caught fire, that the fire had beeijuextinguished, and that there set by Siddoway at be some damage to the hay, whose value had been 000 insurance, sent along with the $12, 000, in the application for but $7, for two letter to Kemp. 2 The hay was a total loss. Dearden,etc.as, agent was duly companies had a supply of their application forms, the within them scope for contract to with them authority licensed by with no He such had authority of an. authorized agent's employment. Glens Falls Glens Falls. Siddoway had no negotiations or contact with such about company. knew nothing and so far as the record reflects, do so. No to offering Siddoway paid no premium to anyone,to though Glens Falls Siddoway. or accepted by executed policy was ever delivered Dearden that represented did not do anything that would indicate to Siddoway had such Dearden that authority, on any assumption it nor did Siddoway act with him. contract ratified Glens any Falls actual or apparent, or that Under such circumstances it is difficult to conclude, that applying subject-matte- r, of principles as to definitude and certainty be terms, toparties, urged show any manifestation and actual existence thereof, that might contract ever was tuafj of mutual assent, an enforceable oral or written the points on appeal to be in the instant case. So concluding, we think merit. J. Allan Crockett, Chief Justice 1. Title 31-17- -1, A. H. Ellett, Justice Utah Code Annotated 1953, re "agent, " re "solicitor." and 2. Reasonably implying that there was 31-17- 31-17- -2, re "broker," -3, insurance risk. efficient hay left The trial court granted a summary judgment in favor of the defendants upon the. following grounds: While the said Jeff L. Carr was not an adult at the time of this incident and therefore could not be expected to have the believes and maturing or judgment of an adult, yet, the Court old 12 student almost "A" a years finds that where straight drove of activities a in athletic who had been active variety his bicycle, dcwn the sidewalk and directly into a four-do- or sedan automobile which was parked across the sidewalk so as to block the same, such bicycle Tider is negligent in failing to keep a proper lookout, in going too fast for existing conditions where he kr.ew the parking place and driveway existed and in failing to keep his vehicle under control. Our court has discussed the matter of contributory negligence on the Lines, part of a child on several occasions. In Nelson v. Arrowhead Freight Com99 Utah 129, 135, 104 P. 2d 225 (1940), this court quoted from Jones mentaries on Evidence, Volume 1, Section 99(a), in part as follows: . . . The question as to whether a child's capacity is such that it may be chargeable with contributory negligence is a question of fact for the jury, unless so young and immature as to require the court to judicially know that it could not contribute to its own injury cr be responsible for its acts or so old and mature that the court must know that, though an infant, yet it is responsible. Where the infant is under fourteen years of age, the burden rests upon the defendant to rebut the legal presumption of incapability of contributory negligence. . . . . In Kawaguchi v. Bennett, 112 Utah 442, 449, 189 P. 2d 109 (1948), this court in discussing an instruction given at trial said: This instruction is in accord with our view expressed in Herald v. Smith, supra. We do not understand that we there said that as a matter of law any child of tender years cannot be guilty of contributory negligence, but rather that a court cannot say, as a matter of law, that such a child was guilty of contributory negligence, but must submit that question to a jury to determine whether the conduct of the child, measured by its capacity and experience was negligent. . . . The question of the advisability of submitting to a jury the issue of contributory negligence on the part of a child is summed up in Sec. 7 of the annotation found in 77 A.L. R. 2d at page 932 as follows: The reason why the court cannot say as a matter of law that a child under fourteen years of age is guilty of contributory negligence is that the question hinges on a number of factors such as the age, intelligence, experience, and education of the child, which cannot be determined in a vacuum, but must be related to the child itself. Seeing the child and hearing him testify would be of great advantage to the triers of the fact. Besides, in a motion for summary judgment the judge is neither required nor permitted to find facts which are in issue - he can only find that there are no issues of fact to be found and that one party is entitled to judgment as a matter of law. E. R. Callister, Justice Tuckett, Justice affidavit filed in this matter he stated that the sidewalk on which he was riding was rough and uneven to such an extent that he had flattened a '.ire while riding upon it about one month prior to the day of the collision ad that he was observing the sidewalk occasionally as he rode along so as to avoid the protruding cement and the rough areas. In an Whether the question of a child's contributory negligence is regarded as one of capacity, standard of care, or compliance with that standard, the courts are in substantial agreement that normally, if not always, a question of fact for the jury is presented, rather than one of law for the court. . . . WE CONCUR: R. L. There is a question as to how long the defendants' car was stopped before it was hit by the plaintiff's bicycle, and this is a question of fact to be determined by the jury. The minor plaintiff in his deposition said he saw the automobile moments before the collision, that he saw it pull out and stop "and I wasn't able to stop," and that he collided with the rear door despite the fac t that he applied his brakes. He said he was going fairly fast but rot too fast at the time. to support a $7, 000 We think there are issues of fact involved in this case which will require a trial, namely, how suddenly did the automobile appear from behind the fence and hedge; how long was it parked across the sidewalk before it was run into; how fast was the plaintilf traveling at the time; how rough was the sidewalk; and was the plaintiff justified in casting his eyes thereon temporarily in order to observe how to direct the wheels of his bicycle so as to avoid the rough areas. |