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(34) Patrick Cunningham to the time of ell; that Costello paid the said $2,000 for his death performed half of the annual as the Daley interests after the claims were sessment work on the "Irish Mag" group, sold by him; that Martin Costello promised except Costello at one time paid to Cunning. Patrick Cunningham that he would hold the ham $100 on account of such annual work. legal title to the "Smogler" and "Belflower" (39) Costello promised to pay Cunningham claims purchased from Peter Johnson as trusat the rate of $5 per day for his services in tee for said Cunningham and himself as connection with the annual work done on the equal owners thereof; and that Martin Cos“Irish Mag” group, and on the "Smogler," tello promised Patrick Cunningham that he "Belflower,” and “Hattie Manchester.” (49) would hold the legal title to the “Hattie Martin Costello frequently promised Julia Manchester” claim as such trustee for the Cunningham, after the death of Patrick Cun benefit of himself and Patrick Cunningham ningham, that when he sold the “Irish Mag” as equal owners thereof. group and the "Smogler," "Belflower,” and
[2, 3] Defendant's opening brief, page 74, "Hattie Manchester” claims, that he would concedes that the evidence presented by the give the heirs of Patrick Cunningham half plaintiffs "as to the 'Belflower' and 'Smogler of the net proceeds of the said claims.
is substantially the same as upon the former Other facts touching the seven claims are trial and held sufficient by this court.” The found and will be noticed in connection with defendant therefore submits a request that the matters to which they relate, viz. the we reexamine such evidence for the reason matters of settlement and compromise, and a new mass of evidence has been offered by damages for the detention of the proceeds the defendant. This is a request of this of the sale of mines.
court to determine the weight of such evi.  The errors assigned by the defendant
dence and revise the jury's verdict reached are numerous, and have reference to many idea of its weight. Such course has not been
from conflicting evidence to conform to our incidents transpiring in the course of the
followed by this court, and will not be followtrial. A large number of such assignments have reference to matters connected with the ed by me in this instance. The verdict of the "Wagner" group off claims, the assigned binding upon the lower court and upon this
jury, supported by substantial evidence, is claim of Julla Cunningham, and the account. court as establishing the fact found. The deing for the net proceeds of the "Leo,” “Roy,” fendant's concession with respect to the evi("Supplement,” and “Buckeye” mines. No
dence concerning the "Smogler" and "Belportion of the money adjudged to be paid by flower" relieves this court of the necessity of defendant in accounting to plaintiffs is comparing the evidence relating to these two found to have arisen from either of said mines in this record with such evidence in sources; consequently defendant has clear the former record. The judgment, in so far ly suffered no injury by reason of errors as it requires the defendant to account for committed with regard to such matters. I the net proceeds of the sale of the "Smogler" deem this statement entirely sufficient to dis- and "Belflover," must necessarily be deterpose of all such questions as they are af- mined as proper and sustained by substanfected by the defendant's appeal.
tial evidence. At the former trial the The defendant assigns as error the insuf- same determination was reached from the ficiency of the evidence to sustain the jury's same evidence as was reached at the last indings referred to above as Nos. 2, 4, 5, trial. The net proceeds of the sale of these 6, 7, 9A, 26A, 32, and 34; that is, the defend- two claims are separate items of the second ant contends that the evidence is insufficient principal item of the alleged account. to establish these facts: That Patrick Cun-  Have the findings of the jury of the eq. ningham paid Mrs. Daley $1,000 in considera- uitable rights of Patrick Ounningham in the tion of her granting to James Reilly her “Irish Mag" group and the “Hattie Manches power of attorney; that said $1,000 was a ter" the support of substantial evidence, is part of the $3,000 purchase price paid to Mrs. the next important inquiry. The defendant Daley for her one-hall interest in the "Irish bitterly attacks the testimony of Mrs. Julia Mag" claim, and her entire interest in the Cunningham as unworthy of belief for many "George Washington," "Old Republican," and reasons, the principal of which is that her "Angel" claims; that on the 16th day of testimony is contradicted by testimony of a September, 1892, Mrs. Daley, through her grade higher than oral testimony and thereattorney in fact, James Reilly, executed and fore controlling. But this is, in effect, saying delivered to Martin Costello a deed conveying that the testimony which contradicts the testo said Costello her said interests in said timony of said witness is entitled to the claims and that said deed was delivered upon greater weight. If so, the jury must deterMartin Costello's promise to pay the remain-mine the weight to be given all testimony subing $2,000 purchase price, as set forth in a mitted to them. certain letter; that Martin Costello promised  The testimony with regard to the acthat Patrick Cunningham and himself should quisition of the title to the "Irish Mag" group be equal owners in the "Irish Mag” claim is substantially the same in this record as at the time Costello purchased an undivided presented in the record on the former trial,
went. In addition to the evidence submitted , proceeding, the reports and documents in such by the former appeal, this record contains estate matters, should be given effect as evi. the circumstances transpiring at the time the dence, as here contended for, property beReilly power of attorney from Mrs. Daley longing to an estate first discovered after the was obtained. The evidence is clear that estate is closed would be wholly lost to the Costello and Cunningham discussed the cir- rightful owners. The finding by the jury cumstances surrounding the acquisition of that we have been considering with regard to said power of attorney in the presence of the "Irish Mag" group has the support of Mrs. Julia Cunningham. From this witness substantial evidence, and the finding justitestimony it appears that Patrick Cunning- fies a decree requiring an accounting by the ham left off his work, took $1,000 in money defendant estate for the proceeds of the sale to Mrs. Daley at an early bour in the morn- of said group; that is, the first above mening, and had her to accompany him (Cunning- tioned principal separate item of account is ham) to a notary public, where she accepted sustained by the proof. the money, executed the Reilly power of at  With regard to the “Hattie Manchestorney, and delivered the paper to Cunning- ter" claim, the evidence is without conflict ham as a contract of sale of her interest in of a serious nature that Cunningham paid the "Irish Mag" group. Another witness tes- Allie Howe at least the value of one year tified to having seen $1,500 in Cunningham's assessment work for his one half interest in possession as he (Cunningham) was on his said claim, and that he paid Tom Concanway to see Mrs. Daley, and on Cunningham's non $50 for the other half interest of said return this witness saw a paper in Cun- claim, and the entire title was conveyed to ningham's possession in all respects similar said Cunningham; that thereafter Costello to the Reilly power of attorney and Cun- suggested in a letter to Cunningham that ningham had only $500 in his possession. they, meaning Costello and Cunningham, had The transaction was a surprise to Costel- just as well be in on that claim as they were lo. Thereafter, up to the date of Cunning- on all of the others; that Cunningham conham's funeral, Costello treated the "Irish veyed the said “Hattie Manchester" to CosMag" group the property of him- tello, and in the deed of conveyance the conself and Cunningham, and at the date of Cun-sideration therefor is expressed as the sum of ningham's funeral he squarely admitted that $50 paid by Costello. Cunningham owned from the beginning an This testimony, with the other facts and undivided half interest in said group.
circumstances in evidence, substantially susDefendant urges with great seriousness tains the findings and judgment, and the findthat the many contradictions in the evidence ing justifies a decree requiring an accounting presented by documentary items and by let by the defendant estate for the net proceeds of ters should have the effect of destroying all the sale of the “Hattie Manchester" claim as of the testimony of Mrs. Cunningham so con a separate item of the second principal item tradicted. The record abounds in probate of the alleged account, thus leaving the procourt documents filed, signed, and sworn to ceeds of the sale of the “Supplement" in by Mrs. Cunningham while administratrix of cluded in said second principal item open to the estate of Patrick Cunningham, deceased, future inquiry. and as guardian of the estate of these mi As a consequence, the judgment and pornors, which, being record evidence, is always tions thereof from which the defendant apdeemed of very high grade evidence of facts peals is without error, and must be affirmed pertinent thereto, and of which they relate; | in so far as the same requires an accounting but the claims made, the property appraised, for the net proceeds of the sale of the "Irish the property reported to the probate court by Mag" group of four claims, the "Hattie Man. means of the said documents, all pertain to chester," and of the "Belflower" and "Smogthe property belonging to said estates with ler" claims. The effect of this judgment on out dispute. The mines accounted for in said the matter of accounting was to require detwo probate proceedings are the "Wagner" fendant to account for the first alleged prinmines. The only manner in which the duty cipal item, and to account for the second in to account for the net proceeds of the sale of part. She is adjudged not liable to account the other eleven mines is by a system of elim- for the proceeds of the sale of the separate ination by inference. That because said item of the second principal item consisting statements and reports do not mention mines of the proceeds of the sale of the “Suppleor interest in mines other than the "Wag- ment," nor for the third mentioned item of ner" group, that this is evidence contradict- the alleged account. ing the claim of interest in any and in all mines other than in the mines mentioned.
Plaintiffs' Appeal. This is argument, but does not preclude the The plaintiffs confined their motion for a jury from lawfully believing the truth of the new trial to the matters touching an accountwitness' story. Strictly, the documentary ing for the proceeds of the sales of the “Supevidence mentioned does not conflict with plement," "Leo," "Roy," and "Buckeye" Julia Cunningham's evidence relating to the mines, the assigned claim of Julia Cunningadditional claim now made in behalf of the ham, and damages for detention. Their mobeirs of Patrick Cunningham, If such probate I tion was denied. The effect of such proceed.
ing was to deny to the plaintiffs an account | jury for their determination of the fact, the ing for the items mentioned, the net proceeds plaintiffs have been denied a trial to that of the sales of the “Leo,” “Roy," Supplement," extent and are injured thereby. No error and "Buckeye" mines, the assigned claim of was committed by the court in refusing to Julia Cunningham, and interest on the money submit interrogatories with respect to the received as damages for its detention. The "Buckeye,” for the reason the proceeds of judgment rendered for plaintiffs did not in the sale of said claim were not involved, as clude an accounting for said items. Plain we have seen above. tiffs have expressly limited the scope of their [9, 10) With this inquiry in view, we will appeal to said order refusing a new trial refer briefly to the evidence affecting the with respect to said items.
"Leo," "Roy," and "Supplement" items. The  The assigned claim of Julia Cunning. "Leo" was located December 12, 1895, and ham is res adjudicata in its entirety, and the the “Roy" was located December 7, 1895. discussion of the same must be dismissed with The location notice of each is signed by Marthat statement. On the former appeal (16 tin Costello as locator and Pat Cunningham Ariz. 479, 147 Pac. 714) that claim was finally as witness. These location notices were readjudicated. The trial court declined to submit to the James Reilly. Mrs. Cunningham testifies as
corded February 20, 1896, at the request of jury the consideration of the "Leo," "Roy,"
to the circuinstances under which they were “Supplement,” and “Buckeye" claims. The agreed statement of the facts, page 1440, that Patrick Cunningham discovered the
located, and the testimony tends to show folios 4306 and 4307, of the abstract of record ground, performed all the acts of location recontains the following: “The plaintiffs requested the court to submit from Costello after some delay, and always
quired by law, procured the location notices to the jury interrogatories with respect to the interest of the plaintiffs in the 'Leo," "Roy, Sup-claimed an interest in the claims equal with plement,' and 'Buckeye' claims, or the proceeds Costello. Such testimony is not the subject thereof, which interrogatories the court refused of dispute. Can one say as a matter of law to present to the jury, upon the ground that, as a matter of law, the plaintiffs, under the that but one reasonable inference can be evidence, were not entitled to any interest in drawn from such evidence? The fact that said claims or either of them, or the proceeds the name of Pat Cunningham appears at thereof, said refusal being based upon the ob- the foot of each notice, but appears under jection of the defendant to any interrogatories being submitted to the jury regarding said 'Leo," the word "witness,” indicates his presence 'Roy,' 'Supplement,' and 'Buckeye' claims." and participation in the location. The fur
Plaintiffs grounded their motion for a new ther fact is in evidence that the "Leo" claim trial upon the court's said order refusing to was so called in honor of Costello's son Leo, submit said matters. Such motion was de- and that the "Roy" claim was so called in nied. Plaintiffs assign such refusal order honor of Roy Morfoot, the relative of the as error, alleging that “for the reason that Cunninghams, a member of their family, and under the evidence and the law
at that time a warm friend of Leo Costello. the plaintiffs were * entitled to have These are small circumstances, but worthy appropriate interrogatories submitted to the of consideration as throwing light upon the jury with respect to each of said claims, close relation existing between Martin Coswhich, if answered as contended for by plain tello and Patrick Cunningham. The heirs tiffs, would have either supported or neces- of Patrick Cunningham have alleged that a sitated judgment in favor of plaintiffs with contract had actual existence; that pursurespect to their alleged interest therein."
ant to its terms these claims were located, The question is presented by a number of and by said agreement Patrick Cunningham assignments, and plaintiffs' contention in located these claims in Costello's name; that this respect is answered by solving the in- by the terms of said agreement the said parquiry whether the record contains evidence ties thereto held equal rights therein, and of a substantial nature tending to establish that Costello held the legal title in trust for facts from which the reasonable inference their equal use and benefit, pursuant to said may be drawn that Costello held the title trust agreement, to said "Leo," "Roy," and "Supplement"
The defendant admits that five claims othclaims in trust for the uses and benefits of er than the eleven claims in controversy on himself and Cunningham.
this appeal were acquired by the parties and  The assignments present the reverse held by Costello as alleged, with the excepof that which is presented upon the allegation that Costello's trust required him to action that the evidence is insufficient to sus-count to Cunningham for the interest so held tain the verdict and judgment. If substan- after a sale was made. They deny that the tial evidence has been offered and received eleven mines, including the "Leo", "Roy," during the course of the trial, which would and “Supplement" claims, acquired by origsustain a verdict for the plaintiffs finding inal location, were so acquired and impressthat defendant is liable to account for the ed with such trust. proceeds of the sale of either of said three The reasonable inference to be drawn from claims, and the court refused to submit the such facts and from such admission is that
contract embracing the five "Wagner" mines of $300,000, and this is the second principal concededly acquired near the same time, but item in said alleged account. These facts prior to the time of location, and that the should have been submitted to the jury by said “Leo” and “Roy" locations were made appropriate interrogatories for their deterby Cunningham in the name of Costello in mination. Whether the proceeds of the sale pursuance to such contract then existing of the “Supplement” mine was an item of the The testimony mentioned is substantial in said second principal item of the alleged acits nature and reasonably justifies the said count was a controverted matter in this law. inference. True, such is not the only infer- suit. A further discussion of the testimony ence to be necessarily drawn from such cir- relating to this item is deemed unnecessary cumstances, and, this being the situation, at this time. the one inference of the two which a jury The interrogatories submitted to the jury may draw therefrom, having the support of with regard to the matter of arriving at the substantial evidence, is, when determined, damages for detention of trust money by the conclusive upon the courts, both the trial | trustee are criticised by plaintiffs for uncourt and on this court. The question certainty. Such interrogatories seem to be whether the "Leo" and "Roy" claims were open to criticism, but the jury found no such held by Costello subject to the said trust damages occurred as fact. On a trial of agreement was one of the controverted facts the remaining matter, if the question again in the case with respect to which substantial arises, I presume the court will clearly set evidence exists. The trial court, therefore, forth, by interrogatories, the question inerred in refusing to submit all of the con- volved. troverted questions of fact to the jury. Par The matter of the community property of agraph 542, Civil Code of Arizona 1913. Patrick Cunningham in the mines, the equi
The items arising from the proceeds of ties acquired after his marriage to Julia the sale of the “Supplement” require no ex. Cunningham, was mentioned on the former tended discussion to determine this appeal. appeal of plaintiffs (16 Ariz. 479, 481, 147 In the former appeal we acted upon such Pac. 714), and that matter is only important condition, and did not discuss the record as to this action in determining exactly, the it affected the “Leo," "Roy," and "Supple- amount of the interest the plaintiffs as heirs ment," presuming that the trial court would at law of Patrick Cunningham, deceased, are commit no error upon a retrial with respect entitled to recover of the net proceeds of the to the matters we were not required to dis- sales of said mines in which they have alrea
The record now before us seems to dy or may on another trial be able to estabdisclose that the trial court considered our lish. Patrick Cunningham owned an equity, failure to discuss these items was a deter- and that equity existed at the time of the mination by this court that such items were sale. The community property rights are eliminated from the cause. Such was the defined by statute and by the decisions of this result of the objections of defendant's coun- court. On another trial the law applicable sel, and the trial court approved the objec- thereto, I presume, will be followed. I adtion.
here, however, to the expressions appearing In order to avoid a repetition of such in said former opinion with regard to this erroneous understanding, and for no other matter. I do not now, and did not then, see purpose, I will refer briefly to the remain- the necessity of such expressions. The critiing questions, the determination of which is cism of counsel to the effect that such exnot necessary to the disposition of this appressions are obiter dicta is perhaps fully peal, in view of the determination reached justified. Such expressions, unnecessary at above that the court erred in arbitrarily the time, are often made, sometimes with withholding from the jury the consideration the best of intentions, but regrets follow. of controverted questions of fact with re. However, counsel sometimes show so great gard to the "Leo" and "Roy" claims.
an aptness to misunderstand the opinions of The evidence without dispute shows that the appellate court, when such opinions interthe “Supplement" claim was located July fere with their theory of presenting their 6, 1894. The name of the locator is Martin side of the case reversed, that these unnecesCostello, and the witness Patrick Cunning. sary expressions are thrown in by the apham. It was recorded at the request of pellate courts as good measure and wholeMartin Costello. The evidence tends to some advice to counsel for consumption on show that Costello and Cunningham were the trial to follow. Some of the foregoing both present on the ground at the time of matters prompted our obiter dicta above rethis location. Other circumstances with re- ferred to. gard to this location, the assessment work, The refusal of the trial court to submit to claims of ownership, etc, are produced in the jury for consideration the testimony evidence. The matters are in controversy. with respect to the claims of plaintiffs for The fact appears that the "Supplement" was an accounting for their inherited portion of included in the same deed of conveyance with the net proceeds of the sale of the “L20," the “Hattie Manchester," "Belflower,” and “Roy,” and “Supplement” mines was, in ef“Smogler," and the consideration received by fect, the denial of a trial of the controverted Costello for the four mines was a lump sum | facts in the case, and it was therefore error
to refuse a new trial on motion. For such have been exercising due care, the burden being error the said order is reversed and the cause on defendant to rebut the presumption.2 remanded for a trial of such matters only. 7. EVIDENCE 471(22) – CONCLUSIONS OF
WITNESS. The judgment will stand affirnied in so far
Testimony that defendant had admitted drivas the defendant is required to account to ing his automobile on the R. road "about the plaintiffs for their portion as heirs at law of time we figured the accident happened" was a Patrick Cunningham, deceased, of the net conclusion, and should have been stricken. proceeds of the sale of the “Irish Mag,” | 8. APPEAL AND ERBOB w1050(1)-HARMLESS
ERROR-EVIDENCE. “George Washington," "Old Republican,"
Where there was no controversy as to the “Angel,” “Belflower," "Smogler," and "Hat-time defendant drove his motor truck along a tie Manchester" mines, as adjudged without road, a conclusion of a witness that he admitted
driving it there "about the time of the accident" modification.
was harmless. 8 The cause is remanded to the lower court
9. EVIDENCE 471(24) CONCLUSIONS or for the trial of the controverted questions WITNESS. with regard to the “Leo," "Roy," and "Sup- Testimony of a witness that he went to the plement” mines only as a partial new trial in scene of an accident and saw deceased lying
there and saw the track of the automobile "that such respect. Consequently the cause is re- had run over him” was a conclusion, and should manded, with instructions that the lower have been stricken. court grant to the plaintiffs a trial of the 10. APPEAL AND ERROR 1170(7) HARMquestions and matters pertaining to the LESS ERROR-EVIDENCE. "Leo," "Roy," and Supplement,” and when Although testimony of a witness was a conthe result of said partial new trial is finally which the witness was acquainted was then and
clusion, it was harmless, where every fact with reached, and a final accounting of the whole there known to the jury, and the jury knew it matter involved is thereby determined, to was a conclusion, under Comp. Laws 1907, S enter a judgment in accordance with the 3285, providing that no exception shall be 're
garded unless the decision excepted to is mate truth of such whole account as the same is rial and prejudicial to the substantial rights of so finally determined.
the party excepting.
11. NEGLIGENCE 90_CHILD – CONTRIBUFRANKLIN, O. J., and ROSS, J., concur. TORY NEGLIGENCE OF PARENT.
A parent was not guilty of contributory neg. ligence in allowing a bright six year old child to go a short distance down a road with tri
cycle, where she watched him until he started to (52 Utah, 262)
return. BARKER v. SAVAS et al. (No. 3145.) 12. APPEAL AND ERROR OM 1066 - HARMLESS
ERROR-INSTRUCTIONS. (Supreme Court of Utah. April 16, 1918. On
Where there was no contributory negligence, Petition for Rehearing, May 9, 1918.) there was no prejudicial error, if error, in in
structing that under the pleadings the jury could 1. HIGHWAYS em 184(2) PEDESTRIANS not take the question of contributory negligence DEATH-CAUSE OF DEATH-EVIDENCE.
into consideration. Evidence held sufficient to sustain a finding that plaintiff's child was killed by an automo- Appeal from District Court, Salt Lake bile, and that defendant's automobile killed it.
County; W. H. Bramel, Judge. 2. TRIAL 140(1)-WEIGHT OF EVIDENCE- Action by Charles Barker against, Andrew QUESTION FOR JURY.
Savas and others. Judgment for plaintiff. The truth of testimony is for the jury.
From the judgment and an order overruling 3. HIGHWAYS 184(2) – SUFFICIENCY OF a motion for a new trial, defendants appeal. EVIDENCE.
Affirmed. In action for death of child killed while riding his tricycle on a broad open highway in J. J. Whitaker, of Salt Lake City, for apthe daytime, evidence held sufficient to sustain pellants. Willey, Willey & Watkins, of Salt a finding that an automobile driver was, negligent, although no one saw the accident. 1
Lake City, for respondent. 4. HIGHWAYS 176 — PERSONS ON ROAD DUTY TO SEE PERSONS ON ROAD,
THURMAN, J. This is an action to reThe law imposes the duty on an automobile cover damages for the death of a minor child, driver to see persons on the road in front of son of plaintiff, alleged to have been caused him where his view is unobstructed.i
by the negligence of the defendants. It is 5. HIGHWAYS Cw184(2) – COLLISIONS - Con alleged, in substance, that while said child TRIBUTORY NEGLIGENCE-EVIDENCE.
Evidence held to show that child on tricycle was riding northerly along and upon the east on a road killed by an overtaking motor truck side of what is known as the “Redwood was not guilty of contributory negligence. Road,” in the Taylorsville district, Salt Lake 6. DEATH Ow58(1)–PRESUMPTIONS AS TO DUE county, a large truck automobile driven and CARE BY DECEASED-BURDEN OF PROOF. directed by defendant Andrew Saras, in a
A child killed on the road on a tricycle by northerly direction, at a dangerous rate of an overtaking motor truck, in the absence of evidence to the contrary, will be presumed to
2 Lewis v. Railroad Co., 40 Utah, 483, 123 Pac. 97. 1 Corbett v. 0. S. L. R. Co., 25 Utah, 449, 71 Pac.
'R, G. W. Ry. Co. v. Utah Nursery Co., 25 Utah, 1065; Palmer v. Railroad Co., 34 Utah, 466, 98 Pac. 187, 70 Pac. 859. 689, 16 Ann. Cas. 229; Jensen v. Railroad Co., 44 *R. G. W. Ry, Co. v. Utah Nursery Co., 25 Utah, Utah, 100, 138 Pac. 185.
187, 70 Pac. 859.