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Show PAGE his automobile in a driveway adjacent to a church in Salt Lake County. After parking the automobile, the plaintiff was in the process of locking it when he was struck by a vehicle being operated by Chanae Walker who was accompanied by her father, Dave Walker, Chanae was age 15 years and her driving experience had been very limited. The automobile had only just been purchased by the defendant Dave Walker and it was the first time that Chanae had operated it. The facts would indicate that Chanae was unable to control the movement of the car or to stop the same prior to its collision with the plaintiff. The negligence of Chanae was admitted and the issue of liability was submitted to the jury solely upon the claimed contributory negligence on the part of the plaintiff. The jury returned a verdict adverse to the defendants and they have appealed to this court. result of the collision the plaintiff, a real estate salesman, suffered painful injuries to the groin area for which he was hospitalized for a period of 16 days. The plaintiff was also unable to work for a period of six months. He received a laceration of the calf of his leg and his other injuries were confined to the pelvic region. His injuries included a tear in the scrotum and an injury to the penis which has rendered him partially. impotent. In the opinion of a medical expert called by the plaintiff, the injury to the penis is permanent and cannot be corrected by surgical or medical treatment. As a six-in- FRIDAY, JANUARY THE DAILY RECORD SIX ch The jury awarded the plaintiff special damages in the sum of 40 and general damages in the sum of $37, 500. The evidence shows 351. $1. that the plaintiff suffered loss of earnings in the sum of $7, 536. 66, which were included in the award of general damages. The defendants on appeal seek a reversal of the verdict and judgment found against them in the court below on three principal grounds. Firstly, the defendants claim that it was error for the court to proceed without first having appointed a guardian ad litem for the defendant Chanae Walker. The defendants call our attention to the provisions of Rule 17(b), Utah Rules of Civil Procedure, which provides: When an infant ... isor a party, he mustad litem appear either by a guardian appointed general guardian, in the particular case by the court in which the action is by his A. H. Ellett, Justice J. Allan Crockett, Justice CALLISTER, C. J concurs in result. Lee W. Hobbs, as Administrator with will annexed of the Estate of Joseph Buhler, Deceased, Plaintiff and Appellant, (2) When the infant is defendant, upon the application the infant if he is of the age of fourteen years and applies within 20 days after the service of the summons, or if under that age or if he neglects so to apply, then upon the application of a relative or friend of the infant, or of any other party to the action. of It does not appear that the language of the rules above quoted has been construed by this court. However, similar language contained in the rules and statutes of other states have been before the appellate courts in a number of jurisdictions. In the case before us it appears that the defendant Chanae Walker appeared and filed her answer to the complaint of the plaintiff, went to trial, and was defended by able and experienced counsel, and it would appear that it was only after the verdict was returned against her that she raised the matter of her minority as a defense. It should be noted that the rule above referred to does not place the responsibility of having a guardian appointed upon the plaintiff alone. It would seem that the responsibility is equally upon the defendant to have a guardian ad litem appointed at her own instance to render any assistance which might be necessary in the conduct of her defense. A survey of the record fails to disclose that Chanae had been deprived of any meritorious defense, nor does it disclose that she has been misled or in any way deprived of any benefit she might have had through the assistance of a guardian ad litem. We are in accord with the rule from other jurisdictions that the plea of infancy is a personal privilege which may be waived and without a showing of fraud, collusion, or other substantial error going to the merits of the case the minor defendant is not entitled to be relieved of the judgment against her. Under the statute the defendant Dqve Walker was responsible for the negligent operation of the automobile. Secondly, the defendants' claim that the court's instructing the jury that the life expectancy of one aged 41 years is 31.4 years was reversible error. The defendants contend that the record in this case does not indicate that the plaintiff's injuries will in any way affect his future earnings. The defendants call our attention to prior decisions of this court which have dealt with the subject, but it should be noted in most cases that both mortality tables and annuity tables or combinations of the two were admitted for the purpose of aiding the jury in determining probable loss of future earnings. In the instant case the court in its instruction only referred to life expectancy. While the giving of the instruction would appear to be unnecessary, nevertheless, the jury would in any event have some knowledge as to life expectancy of persons in the age group of the plaintiff. Cases from other jurisdictions follow the rule that life fvi-etancis pertinent in case where there are perWe are of the opinion that the giving of the instruction was manent injuries. FILED January 12, 1971 L. M. Cummings, Clerk Ethel Jeanne Buhler Fenton and James E. Fenton, Defendants and Respondents. CALLISTER, Chief Justice: Plaintiff, the duly qualified administrator of the estate of Joseph Buhler, who died testate in March of 1968, initiated this action to recover certain personal property, namely, stocks and a checking account from defendant, who claims the property as the surviving joint tenant. Plaintiff alleged that the property was held in joint tenancy with the decedent's daughter, the defendant, for the purpose of convenience. Plaintiff demanded that he, as administrator, be adjudged the owner of the personal property and entitled to the possession thereof, that defendant be declared to hold the property in trust and be required to make an accounting of all the transactions which occurred from the time that Joseph Buhler placed the first property in joint tenancy, and that defendant be compelled to execute such instruments as might be necessary to pass legal title to plaintiff. By answer, defendant asserted her ownership of the property and denied that plaintiff or the heirs of the estate possessed any rights thereto. At the conclusion of a When a guardian ad litem is appointed by a court, he must be appointed as follows: No. 12105 v. pending. Our attention is also directed to Rule 17(c), which provides: trial upon the merits, the court granted Thirdly, the defendants contend that the verdict was excessive and appeared to have been given under the influence of passion or prejudice. The defendants fail to direct our attention to anything in the record except the size of the verdict which would indicate passion or prejudice. Courts in other jurisdictions have approved awards similar to the award in this case. Reasonable minds may differ on the amount of compensation adequate to compensate the plaintiff in this case for the injuries he has sustained. The amount awarded hero is not so disport Lunate as to indicate that passion or prejudice influenced the jury's decision. The other points on appeal urged by the defendants do not appear to justify reversal. The judgment of the court below is affirmed. Respondent is entitled to costs. WF. On appeal, plaintiff has reargued the evidence in an attempt to prove that Joseph Buhler and his daughter did not intend by these written instru- ments to create a joint tenancy arrangement. The findings of fact which are substantiated by the record reveal that decedent transferred all of his property to joint tenancy with defendant except for an unpaid judgment of $18, 000. In the early 1950's decedent expressed an intent to distribute his property equally among his five children, but beginning in 1954 and continuing over the following eleven years, he transferred various stocks held by him into his and defendant's names as joint tenants with full rights of survivorship. In 1955, decedent consulted legal counsel and executed a deed placing his home and building lot in joint tenancy. In 1962, he placed his checking account in joint tenancy. Decedent fully understood that by placing title to the stock, bank account, and home in joint tenancy with full rights of survivorship, the same would automatically vest full title to all of the property in the defendant upon his death and that decedent desired and intended such result. There has been no claim made and no evidence to indicate fraud, mistake, or undue influence. Plaintiff has not sought reformation of any written instrument, and the evidence does not reveal any basis therefor. In 1961, when decedent executed the will which was admitted to probate, he owned an automobile, some stocks, a judgment for $18, 000, and his bank account. Subsequently, he disposed of the automobile 1. This property was sold prior to his death and is not involved in this action. and transferred the stocks and bank account to joint tenancy: the judgment 2 (proceeds) is still distributable under the terms of the will. 3 The bank account and stock certificates constituted valid, enforceable written contracts. There were two grounds upon which plaintiff could assert his claim: one, the contract was void because of fraud, mistake, incapacity, or other infirmity; or, second, he was entitled to the equitable remedy of reformation of a written instrument because such instrument failed through accident, mistake, or fraud, or a combination of fraud and mistake to express the real agreement or intention of the parties. The latter case is premised on the theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake or mistake and fraud, some provision was omitted or mistakenly inserted, and the action is to change the instrument as to conform it to the contract upon which the parties had agreed. In the instant action, the following statement in Continental Bank and v. Kimball resolves the issue: Trust Co. Since the appellant is not trying to reform the contract and is not claiming fraud, mistake, incapacity, or other infirmity, we think that it is conclusively bound by the contract as made and cannot show that the parties intended a result contrary to that which the law of joint tenancy rela- tionship imposes. The judgment is affirmed; costs are awarded to defendant. WE CONCUR: R. L. Tuckett, Justice F. Henri Henriod, Justice CONCUR: F. Henri Henriod, Justice defend- ant's motion to dismiss and decreed that the properties which constituted the subject matter of the complaint were defendant's sole property and that plaintiff had no right, title, estate, or interest therein. The trial court observed that the complaint did not sound in fraud nor did plaintiff seek reformation of the contract, and even if these matters had been pleaded, there were no facts, in either event, to grant the relief sought. y not prejudicial. 15, 1971 A. H. Ellett, Justice f V - - . |