Thomas Lamar Dewsnup V. Bailey's Moving and Storage Company & Allied Van Lines : Brief of Respondent Utah Supreme Court
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Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs 2001 Thomas LaMar Dewsnup v. Bailey's Moving and Storage Company & Allied Van Lines : Brief of Respondent Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc2 Part of the Law Commons Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Earl Jay Peck; Neilsen, Conder, Henroid, and Gottfredson; Attorneys for Respondent. Rex J. Hanson; Hanson, Wadsworth, and Russon; Attorneys for Appellant Bailey\'s; Richard L. Stine; Olmstead, Stine and Campbell; Attorneys for Appellant Allied Van Lines. Recommended Citation Brief of Respondent, Dewsnup v. Bailey's Moving and Storage Company, No. 14408.00 (Utah Supreme Court, 2001). https://digitalcommons.law.byu.edu/byu_sc2/1486 This Brief of Respondent is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. T RECEIVED LAW LIBRARY IN THE SUPREME COURT OF THE STATE OF UTAH I3 JUN2977 BRIGM YOUNG UfWERSiTY THOMAS LaMAR DEWSNUP, J. ReaLca Cz& L 7 School Plaintiff and Respondent, vs. Case No. 14408 BAILEY'S MOVING AND STORAGE COMPANY, a corporation, and ALLIED VAN LINES, a corpo ration, Defendants and Appellants. BRIEF OF PLAINTIFF AND RESPONDENT THOMAS LaMAR DEWSNUP Appeal from Judgment of the Third Judicial District Court for Salt Lake County Honorable J. E. Banks, Judge EARL JAY PECK of and for Nielsen, Henriod, Gottfredson REX J. HANSON of and for & Peck Hanson, Wadsworth & Russon Attorneys for Plaintiff-Respondent Attorneys for Defendant- 410 Newhouse Building Appe11ant, Baileyf s Salt Lake City, Utah 84111 Moving and Storage Company 702 Kearns Building Salt Lake City, Utah 84101 RICHARD L. STINE of and for Olmstead, Stine & Campbell Attorneys for Defendant- FILED Appellant, Allied Van Lines JUN 25 tt?6 2650 Washington Blvd. #101 Ogden, Utah 84401 "SS.*s^oCourt,utah Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF CONTENTS Page NATURE OF THE CASE 1 DISPOSITION IN LOWER COURT 1 RELIEF SOUGHT ON APPEAL 1 STATEMENT OF FACTS 2 ARGUMENT 10 POINT I: THE EVIDENCE SUPPORTS THE VERDICT 10 A. THERE EXISTS A PRESUMPTION IN FAVOR OF THE VALIDITY OF THE VERDICT. 10 B. THE EVIDENCE SUPPORTS THE VERDICT EVEN IF THE TESTIMONY CHALLENGED BY APPEL LANTS IS NOT CONSIDERED. 11 C. THE OPINION TESTIMONY OF PLAINTIFF'S EXPERT WITNESS SUPPORTS THE VERDICT AND MEETS THE REQUIREMENTS OF RULE 56 OF THE UTAH RULES OF EVIDENCE. 14 POINT II: THE COURT DID NOT ERR IN ALLOWING SERGEANT RITCHIE TO TESTIFY AS TO WITNESS MASON'S STATEMENT 30 POINT III: THE TRIAL COURT DID NOT ERR BY AD MITTING THE TWO TIRES INTO EVIDENCE 3i A. THE TIRES ILLUSTRATE THE EFFECT OF "WHEEL-HOP" A CONDITION INDICATIVE OF A LOOSE TORSION BAR. 31 B. THE TIRES WERE PROBATIVE AS TO APPEL LANTS' NEGLIGENCE IN FAILING TO PROPERLY MAINTAIN THE TRAILER. 32 POINT IV: PLAINTIFF IS ENTITLED TO THE GENERAL DAJIAGES AWARDED WHICH EXCEEDED THE AMOUNT PRAYED FOR IN THE AD DAMNUM CLAUSE OF THE COMPLAINT 33 POINT V: PLAINTIFF WAS ERRONEOUSLY DENIED THE BENEFIT OF THE PRIMA FACIE EVIDENCE OF DEFENDANTS' NEGLIGENCE BECAUSE DEFEN DANTS FAILED TO SECURE WORKMEN'S COMPEN SATION. 40 CONCLUSION 42 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. AUTHORITIES CITED CASES Page Anderson v. Cummings, 81 Idaho 327, 340 P.2d 1111 (1959) 36 Bechtel v. Benson, 94 Ariz. 350, 385 P.2d 225 (1963) 36 Bowers v. Spinaio, 421 S.W.2d 790, (Mo. App. 1967) 36 Cheney v. Rucker, 14 Utah 2d 205, 381 P.2d 86 (1963) 38 Day v. Smith, 17 Utah 2d 221, 408 P.2d 186 . (1965) 14 Dupona v. Benny, 291 A. 2d 404, (Vt. 1972) 35 EFCO Distrib. Co., v. Perrin, 17 Utah 2d 375, 412 P. 2d 615 (1966) 10 Gibeault v. City of Highland Park, 217 N.W.2d 99 - (1974) J/ Hewitt v. General Tire & Rubber Company, 3 Utah 2d 354, 284 P. 2d 471 (1955) ±4 In re Hubbard, 30 Utah 2d 260, 516 P.2d 741 (1973) -- 12 Jensen v. Logan City, 89 Utah 347, 57 P.2d 708 (1936) 30 Johnson v. Basic, 306 N.E.2d 610 (111. App. 1973) 36 Johnson v. Dix, Inc. v. Springfield Fuels, Inc., 303 A.2d 151 (Vt. 1973) 36 Jones v. Spindel, 177 S.E.2d 187, 122 Ga. App. 390 (1970) ' ^^ Knoble v. National Carriers, Inc., 510 P.2d 1274 (Kan. 1973) 41 Lemmor v. Denver & R.G.W.R. Co., 9 Utah 2d 195, 341 P. 2d 215 (1959) H Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. CASES (CONT.) Page Midwest Supply, Inc. v. Waters, 510 P.2d 876 (Nev. 1973) 36 Moser v. Industrial Commission, 21 Utah 2d 51, 440 P. 2d 23 (1968) 41 Myers v. Smith, 208 N.W.2d 919 (Iowa 1973) 36 Palombi v. D.C. Buildings, 22 Utah 2d 297, 452 P.2d 325 (1969) 39 Prudential Fed. Sav. v. Hartford Acc't. and Idem. Co., 7 Utah 2d 366, 325 P.2d 899 (1958) 37, 38 Ravenis v. Detroit Gen. Hosp., 234 N.W.2d 411, 63 Mich. App. 79 (1975) 37 Shepard v. Chrysler Corp., 430 F.2d 161 (5th Cir. 1970) 40 Smith v. Tang, 412 P.2d 697 (Ariz. 1966) 34, 35, 36 State v. Moore, 356 P.2d 141 (Wyo. 1960) 34 Wallace v. Nelson, 178 N.W.2d 698 (Minn. 1970) 36 Walton v. Atlantic Richfield Co., 501 P.2d 802 (1972) 34 White Motor Corp. v. Stewart, 465 F.2d 1085 (1972) — 42 Wilson v. Oldrovd, 1 Utah 2d 362, 267 P.2d 759 (1952) • 11 RULES Fed. R. Civ. P. 54(c) 33 Ky. R. Civ. P. 189 34 Utah R. Civ. P. 54(b) 38 Utah R. Civ. P. 54(c) • 33, 34, 36, 37, 38, 39 Utah R. Evid. 63(1) 30 Utah R. Evid. 63(4) (a) 31 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. RULES (CONT.) Page Utah R. Evid. 56 14 STATUTES Utah Code Ann. §35-1-57 40 Utah Code Ann. §78-14-7 (1976 Supp.) • 40 SECONDARY AUTHORITIES 6 Moore's Fed. Prac, p. 1261 n. 4 34 6 Moore's Fed. Prac, pp. 1267-68 34 L. Wade, "Some of the Purposes and Effects of the New Utah Rules of Civil Procedure," 2 Utah L. Rev. 12 (1952) 39 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. - 1 - NATURE OF THE CASE Plaintiff-Respondent brought this action to recover for injuries sustained and damages incurred as a result of a semi tractor-trailer wreck occurring near Gillette, Wyoming, in August of 1968. DISPOSITION IN LOWER COURT The jury returned a special verdict in favor of Plaintiff and against Bailey's Moving and Storage Company in the amount of $79,364.31 special damages and $250,000.00 general damages on the grounds of negligence and breach of contract. The trial court entered judgment in this amount even though the award of general damages exceeded the prayer by $50,000.00. Judgment for the same amount was also entered against Defendant Allied Van Lines and in favor of Plaintiff on the basis that Bailey's Moving and Storage acted as its agent. Defendant Allied Van Lines was awarded judgment in the amount of the Plaintiff!s award against Baileyfs Moving and Storage in the same amount as Plaintiff's award on its cross-claim. Based on the juryTs verdict, a judgment of no cause of action was entered in favor of Slim Olson's Service Station. The trial court dismissed Plaintiff's Complaint against Defendants American Oil and C & J Bailey. The motions of Defendants-Appellants Bailey's Moving and Storage and Allied Van Lines for new trial and judgment n.o.v. were denied. (Tr. 1072) RELIEF SOUGHT ON APPEAL The jury's verdict and the trial court's denial of Defendants' Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. i - 2 - motions for new trial and judgment n.o.v. should be affirmed. STATEMENT OF FACTS Plaintiff-Respondent does not agree with the Statement of Facts recited by Defendants-Appellants either as to relevancy or accuracy. Moreover, Plaintiff cannot agree that the statement contained in Defendants1 brief presents the facts in a light most favorable to him. Plaintiff-Respondent, therefore, presents the following statement of facts. Plaintiff was employed as a moving van operator in March, 1967, by Defendant-Appellant Bailey's Moving and Storage Company (Baileys), a local moving company which acts as agent for Defendant- Appellant Allied Van Lines (Allied), a nation-wide moving firm. Plaintiff purchased a new tractor and Baileys owned and furnished a new trailer with which Plaintiff was to haul house hold goods for Baileys and Allied Van Lines. Baileys assumed responsibility for major repairs of the trailer.