Jenkins v. Stephens

In this action plaintiff (respondent) seeks judgment against the defendant (appellant) for the wrongful construction of a dam or dike across a water course near the east line of the appellant's property and immediately west of the respondent's property. The construction of the dam, it is alleged, caused water to flood respondent's lands to his damage. Respondent had judgment. Defendant appeals.

After the appeal had been perfected in this court and the record filed here, the respondent filed a motion to strike the bill of exceptions upon the ground that the proposed bill had not been served within the time fixed by statute. Typewritten briefs were submitted and the court, after consideration, denied the motion. The minute entry denying the motion is as follows:

"In this cause it is ordered that the motion to strike the bill of exceptions be denied; the reasons for the denial of the motion to be stated in the opinion to be filed on the hearing of said cause on merits."

The appellant thereafter prepared and had printed an abstract of the record as well as printed briefs. The motion has been reargued in these briefs. We shall therefore consider that question before entering upon a discussion of the merits.

It appears from the record that the verdict of the jury was rendered September 29, 1922; that the appellant's motion for a new trial was denied December 30, 1922. Appellant's notice of appeal was served and filed on June 30, 1923. The bill of exceptions as settled by the court was served on counsel for respondent on November 20, 1923. No notice of the overruling of appellant's motion for new trial was ever served. No orders were made by the court extending the time for preparing and serving the proposed bill of exceptions. Section 6969, Comp. Laws Utah 1917, provides that a party litigant desiring to have exceptions taken at the trial settled in a bill may, within 30 days after service of notice of the entry of judgment if the action be tried without a jury, or after service of notice of determination of motion for a new trial, prepare a draft of the proposed bill and serve the same, or a copy, upon the adverse party.

In section 7024 of the same compilation, in the chapter headed "Notices, and Filing and Service of Papers," it is provided that all notices must be in writing.

After serving the notice of appeal, orders were made by this court, based upon stipulation of counsel, extending the time to file the record on appeal with the clerk of this court.

It is the contention of counsel for respondent that the giving of the notice of appeal is a waiver of notice of the order overruling the motion for a new trial, and for that reason the district court lost jurisdiction to settle the bill of exceptions. The bill was not served within 30 days after the notice of appeal had been served and filed.

On the other hand, it is claimed by appellant that the time for settling the bill of exceptions did not begin to run until written notice had been served of the overruling of the motion for new trial, and that therefore the court retained jurisdiction to settle the bill. It will be convenient to first consider the arguments of appellant in opposition to the motion.

Reliance is had upon the former opinions of this court. In an early case, Burlock v. Shupe, 5 Utah, 428, 17 P. 19, the court had occasion to consider a similar question to the one here presented. The contention there was that the trial court had no authority to entertain the defendant's motion for a new trial for the reason that it was not filed in the time allowed by statute. The statute then in force provided that —

"The party intending to move for a new trial, must, within ten days after the verdict of the jury * * * or after notice of the decision of the court or referee, * * * file with the clerk, and serve upon the adverse party, a notice of his intention."

The gist of the court's opinion is indicated by the first headnote, as follows:

"Where, after a decision rendered by the court, a party against whom the decision was made applies for time in which to give notice of his intention to move for new trial, such application is not such a waiver of the notice of decision required by section 536 of the Code of Civil Procedure, as to cause the time for giving notice of intention to move for new trial to begin to run."

In the course of the opinion the court said:

"It does not seem that the provision of the statute that the time to give the notice of the intention begins to run from the time of the notice of the decision, and that notices must be in writing, could be held to mean that mere knowledge is notice. Where the party has knowledge, and acts in the manner pointed out in the statute as to follow the notice, there would be good reason to treat his action as a waiver of the notice, or as equivalent to the notice. But we are not prepared to say that anything short of doing something which the statute points out as to follow or be preceded by the notice, would be or could be treated as a waiver of the notice. The party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice."

That opinion follows the opinion of the Supreme Court of California in Biagi v. Howes, 66 Cal. 472, 6 P. 100. The rule laid down in these cases has been adhered to in two later decisions of this court. The California court, in Biagi v.Howes, supra, said:

"This is much the best rule. It is more certain and definite, prevents controversies which, under any other construction, would be likely to arise, and above all accords in our opinion with the intention of those enacting the statute."

The authority of Burlock v. Shupe was recognized by this court in Mercantile Co. v. Glenn, 6 Utah, 139, 21 P. 500, andEverett v. Jones, 32 Utah, 489, 91 P. 360. In the EverettCase the language of the Burlock Case that "the party must do some affirmative act pointed out in the statute as not necessary to be done until after the notice" is recognized as the settled practice in this state under a statute such as the one now under consideration.

The Superior Court of New York, in Fry v. Bennett, a case reported in 16 How. Prac. 402, in discussing a provision of the act of procedure requiring written notice, says:

"First, to make the condition of the limitation so plain that there should be no danger of misconstruction or misapprehension. And, second, to place it in the power of the prevailing party to set the time running within which an appeal shall be taken, whenever he may choose. By this means each party is placed in a situation to know distinctly and clearly what is the actual state of the controversy in this respect. The losing party will not be taken unawares and be deprived of a right of review, and the prevailing party will know precisely when the right of review is waived or lost."

Reliance is had by respondent upon certain language found in the decision of this court in State ex rel. v. DistrictCourt, 38 Utah, 138, 110 P. 981, Ann. Cas. 1913B, 437; but that opinion does not overrule or attempt to overrule Burlock v.Shupe, supra, or Everett v. Jones, supra. On the contrary, the decision in that case refers to the former two cases as supporting the conclusion reached.

It was within the power of the respondent at any time after December 30, 1922, by serving notice, to start the running of the time within which the bill of exceptions could be settled by the trial court. The giving of the notice of appeal is not contingent upon any notice of the decision. The time for appeal cannot be extended, and the time expires six months after the judgment becomes final, whether any notice of entry of judgment or of the ruling on the motion for new trial is served or not. Minneapolis Threshing Mach. Co. v. Fox et al.,52 Utah, 101, 172 P. 699. The taking of the appeal, therefore, cannot be said to be an act or conduct on the part of the appellant which was not required or necessary to be done until after service of the notice of the overruling the motion for new trial. At most, it is only a matter of procedure, and the procedure having been stated and accepted by the bar of the state as announced in the foregoing cases, no good reason appears why the rule should be changed, especially in view of the fact that the successful party always has it in his power to start the running of the statute. The rule tends to regularity; it does not present doubtful questions as to whether this or that act could be considered a waiver, and deprives no one of any substantial right. Tested by the decisions of this court announced in5 Utah, 428, 17 P. 19, and subsequent cases founded upon the earlier rulings of the Supreme Court of California and 1 the Superior Court of New York, we are clearly of the opinion that the order of the court, in the preliminary stages of this appeal, denying the motion to strike the bill of exceptions, should be adhered to.

Passing now to the merits.

Appellant discusses at some length the weight of the evidence. It ought not to be necessary to repeat that this court, in law cases, is not permitted under the Constitution or statutes to weigh evidence. If there is any substantial competent evidence in the record to support the court's findings 2 or the verdict of the jury, the judgment will not be disturbed in the absence of some error of law prejudicial to appellant.

There is ample evidence to support the verdict.

Error is assigned respecting the admission of certain testimony. These errors are without substance.

No exception was taken by either party to the court's instructions. The only legal question requiring consideration is certain proceedings after the case had been submitted to the jury.

It appears that the case was given to the jury at about noon on September 29, 1922. At 6:10 on the afternoon of the same day the court was notified that the jury desired to come into the courtroom for further information. It likewise appears from the remarks of the court in passing upon a subsequent motion that he notified the clerk to communicate with counsel for the respective parties, and that the clerk reported to the court, within a few minutes, that he could not get into communication with counsel. Thereupon the jury was brought into the courtroom and the court inquired whether they had arrived at a verdict. The foreman replied that they had not, but thought they would be able to do so. The court then admonished the jury that some time had been spent in taking testimony and expressed the hope that they would be able to arrive at a verdict. Thereupon a juryman asked if a question was permissible and was advised by the court that it was if it related to the trial of the case. The juryman then said:

"We are in doubt to some extent of the testimony that was given by Mr. Skeen, being on the dike or the dam. He said it would have taken only 30 minutes to make a hole through that dam. Now there was a dam about a half a block east from where the roadway was, and we are in doubt, if he meant the dam he was on, if he really was on the roadway."

The court, in reply, said:

"Without discussing the matter, I will just ask the reporter to read Mr. Skeen's testimony to you, and then you may consider it in the light of the testimony. Will that answer the question? Mr. Reporter, you may read the testimony of Mr. Skeen; so much of it as the jury desires to hear."

At the conclusion of the reading of the direct testimony of the witness Skeen, the court said: "All the direct examination read." The foreman of the jury answered: "I think that is sufficient." The court then asked: "Is that satisfactory to all of you?" One juryman replied that it was not, that there was one other question, but that he preferred that the plaintiff be not present. (The plaintiff was then in the courtroom.) Thereupon the plaintiff left, and the foreman of the jury, addressing the court, said:

"Your honor, the question came up in regard if there was a damage assessed and this dam or this roadway continued in the present condition, and the water didn't escape, what redress would either one of the people have; would they have to start another suit? Of course that has not been brought out in the testimony of either side, but it was a question that came into our minds, and some of them wanted the question asked."

In answering that question the court said:

"* * * If I understand the question correctly, at this time if the jury felt the plaintiff was entitled to recover you would consider, in computing the amount of damage, the time which has elapsed from the time the dam was built, up to the present time, and award him such damages as you find from a preponderance of the evidence he is entitled to. Then, if it continued to go on in the future, I think he would have cause at some time to bring another action for any damage that might accrue subsequent to this time, in the event the defendant did not correct the injury which existed, if you find it does exist. In other words, you assess the damage up to the present time, and from now on up to some future time would be material for some future damage or lawsuit. * * *"

It appears by affidavit undisputed that the appellant knew nothing of this interview between the court and the jury, nor of the instructions given until November, 1923, approximately nine months after the motion for a new trial had been denied. Thereupon the appellant filed a petition asking the court to allow her an exception to the order of the court permitting the reading of the testimony of the witness Skeen on direct examination without reading the cross-examination, also an exception to the oral instruction of the court given at the time, in answer to the question propounded by the foreman of the jury, and to the whole of the remarks of the court in answer to that question. Further, to allow an exception to the oral instruction that if the jury found for the plaintiff they could assess the damages up to the time of giving said instruction. Arguments were heard on the motion, and the court made an order granting the appellant exceptions to the failure of the court to have read to the jury the cross-examination of Mr. Skeen, after his direct testimony had been read. Also that the appellant be allowed exceptions to the oral instructions given at the time and to each and every part thereof. The procedure of the court and the giving of the instructions are assigned as error, and, as indicated, constitute the only serious question in the case.

In section 6811, Comp. Laws Utah 1917, it is provided:

"After the jury have retired for deliberation, if there be a disagreement among them as to any part of the testimony or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. Such information must be given in writing or taken down by the stenographer."

As indicated, neither counsel for appellant nor counsel for respondent were present, and they were not notified that the jury desired further information or further instructions as to the law of the case, although it does appear that the court instructed the clerk to make an effort to communicate with counsel.

It appears that the dam or dike complained of was constructed along the east boundary of appellant's land, just west of the boundary line of respondent's land. It also appears, without much controversy, from witnesses well informed, that at about the place where this dam or dike was constructed for many years an old roadway had existed. As indicated in the question by the juryman, some distance east of that roadway, on the land of respondent, there existed a dike or dam, running across, or at least partially across, the same depression in the land. The question of the juryman indicates that there was a doubt in the minds of some of the jurors whether the witness Skeen had been on the roadway or on the dam or dike further east on respondent's land. The cross-examination of Mr. Skeen, covering a number of pages in the transcript, was very largely directed to an attempt to show he was not on this roadway at all. He repeatedly stated that he did not observe any roadway there. Mr. Skeen was an important witness, testifying in rebuttal after defendant had closed her case. It was therefore doubly important that if this witness' testimony was to be selected and read separate from all other testimony bearing on that particular question, his entire testimony should have been read to the jury, notwithstanding the jury expressed themselves as satisfied with what had been read.

The Court of Appeals of Colorado, in Hersey v. Tully,8 Colo. App. 110, 44 P. 855, in considering the action of the trial court in permitting certain testimony to be read to the jury after the case had been submitted, said:

"But, without regard to any question of the legal effect of this testimony, it was serious error to permit it to be read to the jury after the case had been submitted to them. They thus heard a portion of the plaintiff's testimony twice, and the last time disconnected from all the other evidence, so that they went back to their room with their memories refreshed as to this; and having listened to it out of its connection, they would be liable to give it an importance to which it was not entitled, and which they would not have given it otherwise."

Courts generally do not favor permitting any one witness' testimony on a particular question, where there is other testimony in the record bearing upon the same question, to be read to the jury after a case has been submitted. In any event, it is of doubtful procedure to permit the reading of part only of one witness' testimony bearing on a question when all of that witness' testimony on the same subject, whether direct or cross, is not caused to be read, and especially when the testimony is read in the absence of counsel. The statute apparently is mandatory in requiring additional instructions or additional testimony to be given in the presence of, or after notice to, the parties or counsel. In this case there 3 had been much other testimony bearing on the same question. It was important in the case for the reason that if the dike built on plaintiff's land had caused the water to back up and flood his land, then necessarily no damages could be imputed to defendant, even though she had constructed a dam as claimed by plaintiff. There is, however, another reason why in our judgment the verdict of the jury will have to be set aside.

The court, in its third instruction, advised the jury that the measure of compensation or general damages, in the event the jury found that plaintiff was entitled to recover damages, was the difference between the market value of the land at the time and immediately before the alleged construction of the dam or dike referred to in the complaint and its market value at the time of bringing the action. He amplified that instruction by stating that if the jury found for the plaintiff the depreciation in the market value of the lands of plaintiff, caused by the construction and maintenance of the dam, was the measure of damages. As stated above, all parties seemed to have been satisfied with that instruction and no exception was taken by counsel for appellant. Manifestly a verdict for respondent under that instruction would have been a 4 defense to any future action by respondent based upon any injury resulting from the water flooding his land caused by the dam in question. In the oral instruction given when the jury returned into court, the jury were advised that its verdict would not affect future damages. These two instructions render it impossible to determine whether the jury was controlled in the amount of damages awarded by the third instruction or by this later oral instruction. If the case had been submitted on the theory that the damages were to be assessed for past damage and not to include any future damage, then the oral instruction was erroneous in advising the jury that they were permitted to consider damages up to the time of giving the instruction, and not up to the date of filing the complaint. The language of the oral instruction is "the present time." The case apparently was tried upon the theory that the measure of damages was the difference in the market value of the land before it was flooded and afterwards. It may therefore be seriously doubted whether there is any testimony in the record to support the oral instruction.

It may be claimed that the oral instruction was more favorable to appellant than the general instructions, but, as stated, all parties seemed to have been satisfied with the instructions given before the case was submitted, and 5 it may well be that appellant was content, if a verdict was found against her, to have such verdict fix damages so that future litigation would be avoided, and since the court had submitted the case upon that theory she was entitled to rely upon that being the result of the verdict, whether for or against her.

We need not determine whether the giving of the instruction and the reading of the testimony in the absence of counsel would of itself constitute reversible error in the absence of some showing that prejudice had resulted. But 6 permitting or causing to be read to the jury the direct testimony of a witness without having the cross-examination read, and the giving of an instruction which is in conflict with former instructions, are such error as in our opinion must of necessity result in a reversal of the judgment and the granting of a new trial.

Such will be the order; neither party to recover costs.