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Show J JkWi-p- tip .it'; fr- ; . ?w w- THE DAILY RECORD PAGE FOUR FRIDAY, JANUARY 11, 1974 In The Supreme Court Of The State Of Utah Buelah Davis, Plaintiff Plaintiff, v. Frederick's Inc., dba Fred's Burger Chalet, a corporation, No. 13354 Frederick's argues that when Balderas had finished his shift and left the premises he was no longer in a "business pursuit "j'and also that his walking out of the door was an activity "ordinarily incident to pursuits. " It is to be recognized, of course, that the acts of walking, or walking out of a door, considered in isolation, are things which are done in "nonbusiness pursuits. " But they are also commonly and necessarily done in "business pursuits. " In fact, such walking is one of the commonest, of mans activities, and such an integral part of his actions in all private and business conduct that it cannot fairly and properly be characterized as peculiar to either one or the other. Many of the actions of the human body, such as for example the raising and lowering of the hand or foot, if viewed in isolation, could be regarded as actions "ordinarily incident to pursuits. But neither the activity, nor the language of the policy, should be viewed in isolation. They should be looked at in the light of practical common sense in relation to the pertinent circumstances. If when so viewed, the activity is something which is reasonably necessary in the carrying on of the business, then it should be regarded as a part of the "business pursuit" within the meannon-busin- Counsel t David E West 1300 Walker Bank Bldg. Security-Insuranc- Dan Balderas and Company of Hartford, ts and Respondents Counsel! H. James Clegg - - 700 Continental Bank Bldg. CROCKETT, Justice: L. M. Cummings, Clerk Cross-Defendan- The controversy now remaining in this case is whether the action of an employee, defendant Dan Balderas, after he was off work, opening a door into an alley which struck and injured the plaintiff, was within the scope of and an integral part of the operation of the business of his employer, defendant Frederick's, Inc. (Fred's Burger Chalet). As will appear below, the interests of the plaintiff Buelah Davis are not here involved. Her claim against defendants has been compromised and settled. Solution to the problem stated above is essential because the employer, defendant Frederick's (and or its insurer) contends that Security Insurance Company of Hartford, under a home owner's policy which covers activities of Dan Balderas, should also be held responsible. Upon the basis of stipulated facts the trial court rejected that contention and determined- that the Balderas policy does not cover the above described incident. That ruling is attacked on this non-busine- ess i FILED December 24, 1973 Defendant and Appellant1, n Emphasis added. counsels Henry E. Heath 604 Boston Bldg. ss - non-busine- 11 ss ing of the language of the policy. In applying that principle here it is our opinion that the trial court was justified in his conclusion that Mr. Balderas's going back into the cafe to find out the time of his next shift, and leaving the place through the rear door (or any door), was an activity incident to and essential to the business; and consequently was not covered by the Balderas home owner's policy. appeal. Affirmed. Dan Balderas, age 26, worked a's assistant cook and performed general duties at Fred's Burger Chalet at 41 East First South in Salt Lake City. His shifts varied to accommodate his class schedule at the University of Utah and the needs of the business. He would generally go to work just before noon and remain until around 9:00 p. mi His immediate superior, Mr. Roger Robinson, would tell him when he was to come to work. Cost to respondents. WE CONCUR: Ef R. Callister, Jr. On the day of the incident of concern here, June 3, 1970, he left work earlier, about 3:00 p.m. Immediately after leaving, he returned to ask Mr. Robinson when he should report back for his next shift. He then' left through the rear door, which opened onto an alley leading to a parking ' lot. As he did so, 'he swung open the screen door just as the plaintiff, a woman 5"8!years old, was walking by. The door knocked her to the ground causing her substantial bruises and injuries, including a broken wrist. For all of the resulting damages, including medical, loss of wages, pain and suffering, her claim was compromised and settled for the sum of $5,000. , Chief Justice A. H. Ellett, Justice R. L. Tuckett, Justice Henriod, J. , dissents. Frederick's argument that Security of Hartford should also be held in the settlement involves consideration of this provision of the Balderas policy: responsible andor participate This policy does not apply to bodily injury or property damage arising out of business pursuits pf any insured, except activities therein which are ordinarily incident to pursuits. non-busine- ss 1. See Martine Hi v. Security Insurance of New Haven, (Mo.) 490 S. W. 2d 427. Under a similar exclusionary clause, where one employee walked into and bumped another, it was held that the act of walking should not be taken out of context of the occurrence to be regarded as a activity, and that the incident was done in the "business pursuit" of the employer. non-busine- ss to that reads: ". . . A witness must answer as to the fact of his previous conviction of felony, " and further provides4 that a defendant in a criminal case may be cross-examinby counsel for the State the same as any other IN THE SUPREME COURT OF THE STATE OF UTAH ed ooOoo 1 witness. State of Utah, Plaintiff and Respondent, No. 13296 FILED December 26, 1973 Howard Smith Bennett, Defendant and Appellant. Counsel: L. M. Cummings, Clerk Robert VanSciver Thorit Hatch .. This is an appeal by the defendant from a jury verdict finding him of murder in the second degree. He claims error at trial in four guilty 1. Rule 21 by its terms does not apply where a statute otherwise proand since the statute does otherwise provide, there was.no error in vides; requiring the defendant to answer to his prior conviction of murder in the second degree. 1. A cell especially constructed for detaining prisoners until they become sober. 2. Miranda v. Arizona, 384 U.S. 336, 16 L.Ed. 2d 694 (1966). 3. Sec. U.C.A. 1953. 4. Sec. U.C.A. 1953. It seems that the defendant did not so much mind telling th jury that had he been convicted of a felony as he did in telling them that it was murder in the second degree. 78-24- 77-44- ELLETT. Justice: particulars, viz. where it was held: Violation of his so-call- ed Miranda rights. When an accused voluntarily takes the witness stand he may be asked whether or not he has-evebeen convictvd oi a Such a sanctioned If the accused statute. is felony. question by answers in the affirmative, he may be asked the nature of tin . . . The court required him to answer regarding a prior felony conviction while he was a witness in his own behalf. ' 3. There was insufficient evidence to sustain the verdict rendered. 4. The giving of an abstract instruction on involuntary manslaughter. There is no substantial dispute in the facts of this case. Both the and the defendant were drunk and were placed in the same drunk tank. victim r felony 1 The victim was placed in the cell about seven p.m. and the defendant about one hour later. After an elapse of approximately three hours a deputy sheriff checked the cell and discovered the victim lying in a pool of blood on the floor and the defendant asleep on a wall bench. The officer awoke the defendant and asked him, "What happened?" The defendant replied, "I killed the son of a bitch last night; he would not shut up." A few moments later the defendant began shouting, "Call the newspapers. The police did it. " The Miranda case, 2 despite the mischief it has wrought, offers no aid to the defendant. Even in courts where it is thought to be valid it would not apply to the facts of this case. The defendant was not in custody at the time for the crime of murder. He was being detained on another charge. The officer simply wanted to know what had occurred. Involuntary manslaughter is an unintentional killing which occurs in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce-deatin an unlawful manner and without due caution and circum-- , spection. An unlawful act not amounting to a felony is any crime not punishable by imprisonment in the state prison. A person acts without due caution and circumspection when his acts in a given instance evidence a marked disregard for the safety of others. on His exception to this instruction was as follows: rule reads: Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility, except as otherwise provided by statute. Emphasis added. at the time of trial and for over seventy years prior ' The defendant does not deny that he is guilty of involuntary manslaughte r in that without malice he killed the victim while he was in the commission of an unlawful act not amounting to a felony, to wit, a battery. He complains of Instruction No. 5 given by the court to the jury, which is somewhat in the languagr of the statute defining the crime of involuntary manslaughter. It reads thus: The defendant voluntarily testified and on was reto he admit that had theretofore been convicted of a felony, to wit: quired Murder in the second degree. He claims that it was error to require him to answer regarding that prior conviction and cites Rule 21 of the Rules of Evidence adopted by this court prior to trial to sustain his position. That cross-examinati- .... Rule 21 does not overrule the statute, nor does it change the ruling in the Kazda case. Until the statute is amended, it would appear that a defendant who voluntarily takes the witness stand must answer to the fact oi a prior conviction of felony if such is the case. i Our statute -9, -5, The matter was before this court in the case of State v. Kazda, : 2. '. We except to Instruction No. 4 under the standard for reasonableness and provocation. I think Judge Crockett's concurring opinion spells out that there is no standard as to what is . . . . reasonable. The standard is what, if the defendant was affected and if he therefore is no longer a cognizant person but reacting emotionally is entitled to be convicted of voluntary manslaughter. 5 |