Jensen v. Utah Railway Co.

On Petition for Rehearing. A petition for rehearing is filed by the respondent. It, among other things, complains of that portion of the opinion wherein it is stated that the respondent was not in position to invoke a review of the ruling of the court below overruling respondent's motion for a directed verdict, because of no cross-assignment of error. It, in effect, is urged that on an appeal taken by the unsuccessful party, seeking to reverse and set aside a judgment, the respondent, when he himself does not seek to modify or disturb the judgment, but only to defend and uphold it, may, without cross-assignments, point to anything in the record to support the judgment, and especially which shows or tends to show that the errors assigned by the appellant were nonprejudicial, and in connection therewith and for such purpose may point to and have reviewed any ruling made by the court below adverse to him. And in such respect it is particularly urged that, whatever errors may have been committed by the instructions to the jury, such errors were rendered immaterial and of no harmful effect, if on a review of the evidence and of the whole record it be found that the trial court erroneously overruled the respondent's motion, for in such case it is urged that the jury, rendering a verdict in favor of the respondent of no cause of action, but did what the court on the motion ought to have done, or was required to do.

As supporting such views the respondent cites and relies on the cases from this jurisdiction of Pool v. S.P. Co., 20 Utah 210,58 P. 326; Azzalia v. St. Claire, 23 Utah 401,64 P. 1106; Madsen v. Utah Light R. Co., 36 Utah 528, 105 P. 799;Bown v. Owens, 37 Utah 177, 106 P. 708; Schuyler v. S.P.Co., 37 Utah 581, 109 P. 458; Progress Spinning KnittingMills Co. v. So. Nat. Ins. Co., 42 Utah 263, 130 P. 63, 45 L.R.A. (N.S.) 122; Daley v. S.L. U.R. Co., 67 Utah 238,247 P. 293. In such cases it in effect is stated that, where the record in a case is such as to preclude the unsuccessful party from recovering any judgment, or where on the undisputed evidence the appealing party as a matter of law was not, but that the prevailing party was, entitled to prevail, errors in a charge are immaterial and harmless; and thus the court affirmed the judgment of the court below, regardless of the assigned errors of the appellant.

However, in such cases not anything is said as to whether there were or were not cross-assignments before the court, nor when cross-assignments are or are not required, or as to what may or may not be reviewed or considered without them. Apparently in all such cases there were no cross-assignments of error before the court, nor was there in any of them presented or considered the question of when cross-assignments of error are or when not required, or what may or may not be reviewed or considered without them. Since in such cases this court, without reference to any cross-assignments of error, on reviewing and considering the whole record, and finding that on the evidence and on the merits of the controversy the unsuccessful and appealing party was not entitled to prevail, and holding erroneous instructions and other assignments of the appellant immaterial and of no harmful effect, and thus affirmed the judgment, it can be urged with much force, as it is, that such has become the established practice of this court in appellate procedure.

Respondent, as supporting its views, also cites 4 C.J. 908, where it is stated that a party cannot assign error which is not prejudicial to him; that where the judgment is clearly correct upon the merits, intervening errors will not operate to reverse the judgment, and, where the unsuccessful party is not entitled to succeed in any event, he cannot complain of any error committed at the trial. Numerous cases are cited by the author from many different jurisdictions in support of the text. Such rule or proposition is there stated without reference to and regardless of any requirement of cross-assignments. However, elsewhere, and as presently will be noticed, the author does consider and discuss the necessity and requisites of cross-assignments.

The respondent also cites the case of First Nat. Bank ofMarshalltown v. Wright, 84 Iowa 728, 48 N.W. 91, 50 N.W. 23, where that court in effect held that an appeal or cross-appeal on behalf of the appellee or defendant in error was not essential to present a review of the question. It also is to be observed that in that jurisdiction, as in many other jurisdictions, cross-assignments apart from a cross-appeal are not required. The case of Gillean v. Witherspoon (Tex.Civ.App.) 121 S.W. 909, is also cited, wherein that court held that where, on the whole case, the appellee was entitled to a directed verdict, and the trial court failed to give him the benefit of it, he, on an appeal by the unsuccessful party, may complain, and have the matter reviewed without cross-assignment of error. In these as in other jurisdictions, cross-assignments are regarded as relating only to cross-appeals, and hence are not required where a cross-appeal is not required. But, as presently will be noticed, such is not the rule in this and in some other jurisdistions.

The respondent also cites the case of Pardee v. Kuster,15 Wyo. 368, 89 P. 572, 91 P. 836, where it was held that the defendant in error, without cross-assignments, may, in the appellate court, challenge the sufficiency of a complaint or petition of the plaintiff in error to state a cause of action or right of recovery. Of course, that is something which, without objection, exception, or assignment, and for the first time, may be challenged in the appellate court, and is what is sometimes called "fundamental error," to consider which neither an exception nor an assignment is requisite, and, as is sometimes said, may sua sponte be noticed as jurisdictional matters are or may be so noticed.

To follow the rule or practice contended for by the respondent leads to the conclusion that cross-assignments by the respondent are in no case required, when he does not seek to modify or disturb the judgment appealed from, but merely to defend and uphold the judgment, and for such purpose may, without cross-assignment, urge a review and consideration of anything in the record which, as claimed by him, obviates or avoids the errors complained of by the appellant, or which renders them nonprejudicial. It must be confessed that the decisions of this court, heretofore referred to and cited by the respondent, lend support to such a contention. And were it not for other cases of this jurisdiction, presently to be noticed, we, because of the decisions referred to by the respondent, would be inclined to uphold its contention, follow such a practice, recall what we in such respect said in our former opinion, and proceed to consider and review the ruling of the court below, overruling the respondent's motion for a directed verdict.

We have no statute on the subject of cross-assignments of error, nor as to when they are or are not required, or as to what may or may not be reviewed and considered without them. The statute (section 6994, Comp. Laws Utah 1917) merely provides that either party to the appeal may assign any errors in findings of fact or conclusions of law, without having first filed a motion for a new trial in the court below. We have a rule of court, rule 26, which provides that the appellant is required to assign errors in writing, and serve and file them in this court within 15 days after the filing of the transcript of the record on appeal. The rule further provides that, "if the respondent desires to assign cross-errors, he shall do so in writing," and serve and file a copy thereof in this court within 5 days after service of the appellant's assignments. It further provides that each alleged error shall be separately stated, and, when the alleged error is upon the ground of insufficiency of the evidence, the particulars wherein the evidence is so insufficient shall be specified, and that the assignments, or so much thereof as relied on, shall be set forth in the printed abstract, together with references to the pages of the transcript and abstract where rulings complained of appear.

It is thus seen that neither the statute nor the rules of this court prescribe when cross-assignments are required, and when not, or what may or what may not be reviewed or considered with or without them. However, this court, in a number of cases, has had occasion to consider the necessity of assignments, as well as cross-assignments and the purpose and function of them. In SmithTable Co. v. Madsen, 30 Utah 297, 84 P. 885, this court said that the object of assignments of error was to apprise the appellate court of the specific questions presented for its consideration, to inform the opposing party of the points intended to be relied on, and to limit discussion and consideration thereto. Such views are elaborated on and confirmed in Lyon v. Mauss, 31 Utah 283, 87 P. 1014. True, in such cases the court had under consideration the purpose and function more particularly of direct assignments, and where they were required to be made, whether in the court below or in this court. What was said in such cases led to the promulgation of rule 26.

However, prior and subsequent thereto this court repeatedly held, as is and was generally held in other jurisdictions, that an error or ruling not assigned, or though assigned, but not discussed, would not be reviewed or considered. And in Perrin v. Union Pac. R. Co., 59 Utah 1, 201 P. 405, this court said that is was not "authorized," either by statute or rules of court, to review any ruling of the court below, unless error was assigned, designating and specifying the alleged error. As an abstract proposition the statement there made perhaps is too broad, for it is the well-settled doctrine that rulings or questions involving or relating to jurisdiction, and to what is sometimes called fundamental error, errors or defects like those relating to a complaint or other initial pleading, which is so wanting in facts as not to support any kind of judgment or relief, and such as are not waived by failure to object or except, may sua sponte be noticed without objection, exception, or assignment, and even, in some instances, generally applied to homicide or other cases of grave criminal charges but rarely to civil cases, where the ruling, though not assigned or objected to, was so palpably and flagrantly erroneous, and so highly prejudicial, as to show that the trial was manifestly unfair, and the conviction unjust.

The respondent, in effect conceding such views, nevertheless asserts that they apply only to direct assignments, assignments made by the appellant seeking to reverse or set aside the judgment, or when the respondent on a cross-appeal 12 seeks a modification of the judgment, or some other affirmative relief, and in such case well recognizes the general rule that an error or a ruling not assigned, or though assigned, but not discussed, will not be noticed or considered. It, however, contends that the requirement of cross-assignments does not apply when the respondent but seeks to defend and uphold the judgment. This court, in a number of cases, considering the purpose and function of cross-assignments, has held that cross-assignments cannot avail the respondent to have the record reviewed, to afford him a modification of the judgment or any affirmative relief, and that to review a record for such purpose, and to grant such relief, a cross-appeal is essential, and assignments made thereon in the same manner as on the appeal by the appellant, and that cross-assignments perform the office and function of only defending and upholding the judgment. Sierra Nevada Mill Co. v.Keith-O'Brien Co., 48 Utah 12, 156 P. 943; Fowers v.Lawson, 56 Utah 420, 191 P. 227; Roberson v. Draney,54 Utah 525, 182 P. 212; Big Cottonwood Tanner Ditch Co. v.Shurtliff, 49 Utah 569, 164 P. 856; Le Vine v. Whitehouse,37 Utah 260, 109 P. 2, Ann. Cas. 1912C, 407; Rosenthyne v.Mathews-McCulloch Co., 51 Utah 38, 168 P. 957; Larsen v.Ryan, 54 Utah 250, 180 P. 178; Stookey v. Mackay, 42 Utah 1,128 P. 580; Gwilliam v. Ogden City, 49 Utah 555,164 P. 1022; Gilbourne v. O.S.L.R. Co., 39 Utah 80, 114 P. 532.

In such cases this court clearly indicated that cross-assignments can perform the office and function of only to support and uphold the judgment, and in Le Vine v.Whitehouse, and in other cases, it was expressly held that a question or ruling presented by the respondent is not presented for review without a cross-assignment of error; and such is the logic and the effect of all of the cases of this jurisdiction, where the office or function of cross-assignments of error was considered.

Such, too, is in line with the rule stated in 3 C.J. 1404, where it is said that the general rule is well settled that errors operating against the appellee or defendant in error will not be considered unless assigned, nor though assigned, but not discussed, and that the rules governing direct assignments of error in matter of form and requisites apply as well to cross-assignments of error. Cases from many different jurisdictions are cited in support thereof. It, however, is there also stated that the rule is not of universal application, and that it has been held in some jurisdictions that the rule does not apply where the appellee is entitled to a judgment on the face of the record, or where he has shown himself on the whole case to be entitled to an instructed verdict, which was denied him. The cases cited in support of that are the cases cited by the respondent from Iowa, Texas, and Wyoming, and cases from West Virginia, Mississippi, and Louisiana. The author, however, does not lay that down as being the general rule or as being the weight of authority. He merely states that the general rule requiring cross-assignments was not the universal rule.

An examination of the cases and authorities shows that diverse views have been expressed by the courts on the subject, and which are not always harmonious even in the same jurisdiction. Such divergent views in a large measure 13 may be attributable to different statutes or rules of court on the subject. In 3 C.J. 1403, it also is stated that in some jurisdictions assignments of error by the appellee cannot be considered, unless an appeal has been taken or a writ of error sued out by him; but in other jurisdictions errors may be assigned by the appellee or defendant in error, without taking an appeal, or suing out a writ of error. The latter is the holding of this court, when the respondent but seeks to defend and uphold the judgment. The author further says that cross-errors can be assigned or predicated only upon questions presented in the lower court, or rulings of the latter which arise out of or are connected with the judgment on which the appellant bases his appeal. It also is to be observed that in some of the cases and in some of the authorities, when speaking of or considering cross-assignments, assignments on a cross-appeal are meant. But that is not, as has been seen, the manner in which this court has characterized cross-assignments, nor as many other courts have characterized them.

Lastly, the respondent urges that, because of our statute (section 6622, Comp. Laws Utah 1917) providing that a judgment shall not be reversed for errors or defects which do not affect the substantial rights of the parties, and 14 since the burden is on the appellant, not only to show error, but also prejudice affecting some substantial right, he ought not to be permitted to open only such portion of the record as he chooses and close the balance of it to the respondent. Certainly not. The burden, of course, is on the appellant to show, not only error, but prejudicial effect as well. But how may he show that? It often has been broadly stated that all errors are presumed to be prejudicial. We think the better rule is that not all committed errors in the trial of a case are presumptively or prima facie prejudicial, for some committed errors are merely abstract, or on their face immaterial, or otherwise are not in and of theselves calculated to do harm. Still the party against whom the error was committed may show by the record that it resulted to his prejudice in some substantial right.

However, where the committed error is of such nature or character as calculated to do harm, or on its face as having the natural tendency to do so, prejudice will be presumed, until by the record it is affirmatively shown that the error was not or could not have been of harmful effect. Thus, if the appellant shows committed error of such nature or character, he, in the first instance, has made a prima facie showing of prejudice. The burden, or rather the duty of going forward, is then cast on the respondent to show by the record that the committed error was not, or could not have been, of harmful effect. State v.Cluff, 48 Utah 102, 158 P. 701; Jackson, Stone, et al. v.Feather River Gibsonville Water Co., 14 Cal. 19; Thelin v.Stewart, 100 Cal. 372, 34 861; 2 Hayne, New Trial and Appeal (2d Ed.) pp. 1608-1614.

The appellant, having here shown committed error against him in misdirecting the jury as to the law applicable to one or more of the material issues of the case, made a prima facie case of prejudice which cast the burdent on the 15 respondent to affirmatively show that the committed error was not or could not have been of prejudicial effect. In thus attempting to make such an affirmative showing, the respondent invites the attention of the court to the adverse ruling made against it, overruling its motion for a directed verdict, and, without cross-assignments, or specifications of particulars wherein it is claimed the evidence is insufficient to justify a submission of the case to the jury, invokes and urges a review of the ruling overruling its motion on that ground. Were the respondent in position to invoke a review of the ruling, and if, on a review of the record purporting to contain all of the evidence and all of the proceedings had at the trial, it should be determined that the evidence was not sufficient to warrant a submission of the case to the jury or to support a verdict in favor of the appellant, or if on such review it otherwise was conclusively made to appear that the appellant in no event was entitled to prevail in the cause, then, of course, whatever presumption of prejudice might be indulged on the alleged errors in misdirecting the jury would be overcome, and thereupon the judgment, as to such assignments, should be affirmed.

But at the threshold of the proposition is the question of whether the respondent, without a cross-assignment or specification of particulars, was entitled as matter of right to invoke a review of the ruling. If the respondent, without cross-assignment or specification of particulars, is entitled to invoke such a review, then does it follow that this court, without assignments, without a specification of particulars, and even without a motion of nonsuit or for a directed verdict, and without any request in the court below that the case be withheld from the jury, is, sua sponte or on the mere suggestion or argument of the respondent, in every case required to look into and review the whole record, and if in doing so a conclusion is reached that the appellant was not entitled to a verdict or judgment in his favor, to then affirm the judgment, regardless of the assigned errors of the appellant. Such a practice but requires this court to first review and consider the evidence and the merits of the case before considering the presented assignments.

Though it be assumed that this court, without assignments or specifications, either at the request, on mere argument, of the respondent, or on he court's own motion, may, in its discretion, review and consider the evidence and the whole record on merits for the purpose urged, still the question is, when the respondent has made neither assignments of error nor specifications of particulars, is the court required to do so, is the respondent, in such case, in position to invoke and require such a review as matter of right? The reasons requiring direct assignments to apprise the court and the opposing party of what matters are presented for review and to limit discussion and considerationthereto, are, if not entirely, at least to a large extent, applicable to cross-assignments or questions raising or involving insufficiency of the evidence. We think it, as a general rule, is the better practice to confine the review and consideration of the record to what is presented for review, and not undertake to review matters and questions not so presented, except those relating to or involving jurisdiction or fundamental error. The review of the ruling sought to be invoked does not involve nor relate to jurisdiction or fundamental error. 3 C.J. 1342.

It is readily perceived that in many instances, to show nonprejudicial effect of the assigned or alleged errors of the appellant, the record may be pointed to and considered without cross-assignments, and in some, where on the record there were no adverse rulings which could be assigned as error. We need not now consider that, nor undertake to lay down a rule with respect thereto covering all cases. What we now decide is with respect to the particular question before us, that of a review of the evidence to ascertain and determine its sufficiency to have entitled the appellant to go to the jury, which involves a review of the ruling overruling respondent's motion for a directed verdict. When the appellant served and filed his direct assignments of error, if the respondent, to avoid or obviate the effect of them, desired a review of the adverse ruling on its motion, we think no hardship was imposed on it to make a cross-assignment and specification of particulars wherein it claimed the evidence was insufficient, and thus apprise the court and the opposing party of the specific matters so sought to be reviewed and considered. Had the verdict been against the respondent and a judgment entered thereon, and had the respondent appealed, it could not, as matter of right have invoked a review of the ruling overruling its motion for a directed verdict without an assignment of error and a specification of particulars. True, that would be an appeal by the appellant on which it would not be entitled to have considered anything not presented by direct assignment; still, in principle, we think there is no substantial difference as to the requirement of an assignment and specification when a counter attack is made on the evidence on the ground of insufficiency.

We think a party may not, as a matter right, be heard in this court on the question of insufficiency of the evidence, when he had not in some manner presented such question to the court below and invoked a ruling on it, except in cases tried to the court, where findings and conclusions are, by statute, deemed excepted to, and where either party may assign errors with respect thereto and without a motion for a new trial. To hold otherwise would mean that, in a case tried to a court and a jury, error could be imputed to the trial court without having given him an opportunity to rule on it. In such particular the respondent here fully protected its rights by its motion for a directed verdict, and thereby properly presented the question to the trial court and properly invoked a ruling on it. Such was the first step requisite — in some manner to present the question to the trial court and invoke a ruling on it — to entitle the respondent as matter of right to be heard in this court on the question. But that was not enough. It also was required to make a cross-assignment and specification of particulars, though only for the purpose of obviating or avoiding the alleged assignments of the appellant and to support and uphold the judgment. That is what this court held was the office and function of cross-assignments.

Thus, whatever this court, on its own motion or in its discretion, without cross-assignment and specification, may be authorized to review or consider, or could have reviewed and considered, with respect to the ruling of 16 the court below on the question of sufficiency of evidence, still we adhere to the ruling in the original opinion that the respondent, because of no cross-assignment and of no specification of particulars, was not in position, as a matter of right, to invoke a review of the ruling of the court below. No other conclusion may well be reached without creating an irreconcilable conflict in the decisions of this jurisdiction. In reaching such conclusion we do not overrule any of the prior decisions of this court on the subject. Nor do we lay down a rule that this court, without cross-assignment, is not authorized in any case to regard, or may not regard, assigned errors of the appellant nonprejudicial, when on the record it is manifest that the appellant in no event, as matter of law, was entitled to recover. Nor do we say that, in considering and determining the question of prejudicial or nonprejudicial effect of found error, we are not authorized to look, or that we may not or will not look, into or consider the whole record before us.

What we say and what we decide is that as a general rule we will not review or examine a record of a trial of a case before a jury as to a question of sufficiency of the evidence to support the verdict, or to entitle the unsucessful and appealing party to a verdict, unless the matter is presented as indicated, and so that the record in such particular may be examined and considered with a purpose and with the specified particulars in mind. Without assignments and specifications, we, on our own motion, or at the mere instance or suggestion of one of the parties — on mere argument — ought not to be required to examine and review a record to ascertain what defects or insufficiency in the evidence may be found or discovered by us. Still we do not say that we may not, or that we will not, without assignments or specifications, notice and consider palpable defects in such particulars, when on the record they are clearly apparent. However, as a general rule, if the question of insufficiency of the evidence is not properly presented as indicated, a party invoking a review of it may not complain if we do not review or consider it. In all events, so far as this case is concerned, upon the statement of facts in the opinion heretofore filed it is quite apparent that on the evidence adduced in the cause the overruling of the motion to direct a verdict was justified.

Other matters presented relate to the instructions already considered by us. We have also further considered these. We are satisfied with the disposition made of them.

The petition for rehearing is therefore denied.

THURMAN, C.J., and CHERRY, GIDEON, and HANSEN, JJ. concur.