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against the wish and without the consent of together from the time they left Ogden until the plaintiff. The complaint was filed on the they again returned there, and that nothing 10th day of February, 1917, and on the 19th, out of the usual transpired. While there is within nine days after the same was filed, much evidence from which one may readily plaintiff and defendant entered into a stip- conclude that the defendant was indiscreet, ulation, signed by them personally and by indeed on one or two occasions very indiscounsel, whereby it was agreed that, in case creet, yet there is nothing in the record which the court should grant plaintiff a divorce, justifies a finding that she was guilty of any the defendant shall receive certain household criminal act. Indeed, the trial court concedfurniture and that she waived all othered that the evidence was not such as would claims for alimony. It was further stipulat- convict her of criminal conduct. After a ed that the defendant should have the care, careful reading of the record, one becomes custody, and control of the minor child, a impressed with the fact that the defendant little girl 11 years of age, the fruit of the was prompted to do some of the things of marriage between plaintiff and defendant, which she is accused merely to provoke and and that the plaintiff shall pay to the de to defy her husband. One of plaintiff's fendant "the sum of $15 per month for the witnesses, who boarded and lived with plainsupport, care, maintenance, and education" of tiff and the defendant some time before they said minor child. It seems the child elected moved to Ogden, and who came in touch with to live with her mother, a right she had un- them while they lived there, testified that he der our statute. It was therefore stipulated never saw anything indicating any wrongdo that the plaintiff should have the right to ing on the part of the defendant. visit said child, and she should have the right We can readily understand why, after the to visit him “at all reasonable times.” The stipulation was entered into between plainplaintiff also agreed to pay the defendant tiff and defendant, she paid no further atten$25 as attorney's fees.

tion to the action. As is usual in ex parte Upon the foregoing stipulation being filed, hearings, one gets merely the views of the the defendant did not answer the complaint complaining party. It is also true, as all and did not further appear in the action. In lawyers and judges well know, that in a fam. due time the plaintiff presented his evidence ily quarrel the conduct and acts of the spouse to the court, from which it is made to appear that is deemed in fault are unduly, and that for a number of years he had been, and sometimes without adequate foundation, at the time of the hearing was, employed in magnified and distorted. This case is perthe United States mail train service; that for haps no exception to that rule. If in this some time he and the defendant lived at case there had been a vigorous cross-examiLos Angeles, and thereafter for a time at nation of the plaintiff and his witnesses, and if Oakland, Cal. More than a year immediate- they would have been required to give a ly preceding the commencement of the action, strict account of what they knew, and to however, they had lived at Ogden, Utah. give the source of their statements, and if During all of the time aforesaid he was em- such cross-examination had been supplementployed in the government mail service uponed by defendant's version of the acts of trains, and was away from home much of the which she is accused and of her conduct, the time, both day and night. It also was made conclusions that could legitimately be deto appear that the defendant, like most fe- duced from the whole evidence might be quite males was naturally gregarious and was different. That such is the case, we think, is fond of society, and that she and plaintiff, reflected from plaintiff's own conduct. Witwhen he was at home, at times attended nesses were called who testified that he was a dances, and at times, when he was away man of exemplary moral character, and the from home, she attended some private and court so found. If, therefore, he had be. perhaps one or two other dances, but always lieved that the defendant was an immoral with plaintiff's knowledge; that is, she in- woman he would not have stipulated that his formed him that she was going and with only child should remain in her care, cuswhom she was going, except perhaps in one tody, and control. The plaintiff evidently or two instances. It was also shown that believed her to be a fit person to have the during the last few months before the bringing care and custody of his only child. Notof the action one Robert H, Gray, who was withstanding the stipulation, however, and also in the government mail service, and who that the evidence respecting the defendant's was working with plaintiff, paid considerable moral unfitness to rear her own child is, to attention to the defendant, and she seemed to say the least, merely conjectural, and not become unduly friendly with him. She at- satisfactory, the court not only refused to tended a Knights of Pythias dance with him follow the stipulation, but made a finding and also one called the “Telephone Girls" "that said defendant is an immoral and othdance. She also came to Salt Lake City from erwise incompetent and improper person to Ogden one night with Gray and a young man have the care, custody, and control of said and his companion, a young girl, and a Mrs. *

minor child." Stead, in the young man's automobile. The After the stipulation was entered into and testimony produced by plaintiff, however, filed, and while the action was pending, the showed that the five persons were always | defendant left Ogden, and she and the child

2

went to her old home at Quincy, Ill, where , have been quite indiscreet at times. It must,
she and plaintiff were married in 1904, and however, not be overlooked that she was a
from whence they came west for the purpose young woman of perhaps 28 years of age, full
before stated. Defendant is now employed of life and vigor; that her husband was nec
in Quincy, and is supporting herself by her essarily away from home much of the time,
own labor, and is caring for the child with and thus could not always respond to her in-
the $15 the plaintiff is sending from month herent desire for social contact or to mingle
to month. The little girl is attending school with others. It is easy to understand that
there. It was also made to appear that in the young man Gray thus afforded her an
view that the plaintiff is employed in the opportunity to go and mingle with others
United States mail train service, and thus from time to time, and that she willingly
being away from home much of the time embraced the opportunity. Notwithstanding
both day and night, and therefore not able all this, however, there is absolutely no proof
to maintain a home, he was not and is not that she was guilty of any criminal act or
prepared to take the custody of the child, conduct. Apart from the foregoing evidence
which the court had awarded to him, even of being indiscreet, there is not a word of
though she were here. The court, in entering evidence why she should be deprived of the
the interlocutory decree of divorce, therefore, care, custody, control, and companionship of
made the order awarding the custody of her little girl. Indeed, the husband, who
the child to the plaintiff, but made a further knew her better than any one else, not only
order that she be placed in the immediate stipulated before the hearing that the defend-
care and charge of plaintiff's mother, who ant was a fit and proper person to have the
lives on a farm near a town called Perry, care and custody of their offspring, but since
in the state of Illinois. After the court made this case has been appealed to this court he
the foregoing finding respecting defendant's has again most solemnly stipulated that the
moral unfitness, and after refusing to follow defendant is morally and in every other way
the stipulation respecting the custody of the a it and proper person to have the care,
child, and after the defendant was made custody, and control of the child, and that
aware of the court's finding and order, she she is taking good and proper care of it, and
appealed from the order or judgment, and that he consents and desires that the decree
now insists that the court erred in its find be modified in that respect, and that the de
ings of facts and conclusions of law in the fendant be awarded the care, custody, and
particular before stated. Indeed, defendant control of said child.
insists that the court erred in its findings in [2] While, as before stated, we are of the
other particulars. We are, however, not dis- opinion that the best interests of the child
posed to enter upon a review of the findings, should be the guiding and controlling factor
except the one which relates to defendant's in determining its custody, yet the mere fact
moral unfitness to have the care, custody, that the court may be justified in finding
and control of the little girl.

from the evidence that the mother has at[1] While our statute (Comp. Laws 1907, tended dances with others than her husband, 1212, as amended by chapter 109, Laws Utah and at times has been guilty of conduct which 1909, p. 231) provides that in case the court does not square with the court's standard grants a divorce, and any child, the fruit of of morality, is hardly sufficient to justify the marriage, has attained the age of 10 a finding that the mother is an immoral peryears, such child, if of sound mind, shall son, and otherwise unfit to have the care, have the privilege of choosing the parent with custody, and control of her own little girl; whom he shall live; and while in this case and especially is such the case where, as the little girl selected her mother, yet in our here, the father of the girl, who, the court judgment the statute is not conclusive upon finds, is a man of exemplary moral character, the question of custody and control. We has twice stipulated that the mother shall think in case the parent the child selects is have the care and custody of his child, and found to be an immoral or unfit person to that she, morally and otherwise, is a fit perhave the care and custody of the child, and son to rear her. If the father is willing to the court finds it to be for the best interests trust his divorced wife with the child's of the child, that the court may, nevertheless, custody, the court, except for the strongest determine the child's custody otherwise. We reasons, should not set itself up as a moru are of the opinion, however, that in case the censor; and especially not where, as unde parents agree upon which one should have our statute, the court may at any time, upoi the custody of their only child, who is a good cause being shown, change the custody female, and it is found that the husband is a of the child. Moreover, after reading the good moral man and is willing that his wife evidence, we are of the opinion that the findshall have the care, custody, and control of ing of the court "that the defendant is an their child, then the court should follow the immoral and otherwise incompetent and imstipulation of the parties, unless the evidence proper person to have the care, custody, and is strong and convincing that the mother is i control of said child" is, under the circummorally unfit to have the care and custody stances, not supported by the evidence. Acof her own child. As we have hereinbefore tions for divorce are equitable in the highest

not Interfere with the trial court's Andings same purposes, and was 'ho used after repair, in case the evidence is .conflicting, or where was engaged in interstate commerce. the findings are not clearly against the evt.

(Ed. Note.-For other definitions, see Words dence, under the circumstances of this case, and Phrases, First and Second Series, Inter

state Commerce.) we are very loth to permalt the inding

4. MASTER AND SERVANT 276(1) INJURY to stand that a mother is an immoral and

WHILE ENGAGED IN INTERSTATE COMMERCE unfit person to have the care, custody, and -EVIDENCE. companionship of her own offspring unless In action based on Federal Employers' Liathe evidence clearly merits such a Anding. bility Act, evidence held to sustain jury ending Findings of courts are solemn things, and ant's passenger engine, was engaged in inter

that plaintiff, injured while repairing defendwhere the moral character of a mother is state commerce. involved courts should be careful not to per. 5. APPEAL AND ERBORO999(1)—JUBY FINDmit their own moral standards to betray INGE-CONCLUSIVENESS. them into concemning a mother except on

Plaintiff having made a prima facie case, good and sufficient evidence. In view, there finding of the jury is conclusive on appeal.

and defendant having produced no evidence, the tore, of the meagerness of the evidence, and

6. MASTER AND SERVANT 203(1) "CONin view that it conclusively appears that

TRIBUTORY NEGLIGENCE" DISTINGUISHED the plaintit, the father of the child, desires

FROM “ASSUMPTION OF RISK.". that she be and remain with her mother, the It does not necessarily follow from a jury findings of the court and the decree are dis. finding that a servant was negligent that he also approved, and the cause is remanded to the gence" does not necessarily arise from intelli

assumed the risk, since "contributory negli. district court of Weber county, with direct gent choice as does "assumption of risk.” lons to set aside the finding and conclusion (Ed. Note. For other definitidns, see Words "that the defendant is an immoral and other and Phrases, First and Second Series, AssumpFise incompetent and improper person to tion of Risk; Contributory Negligence.] have the care, custody, and control of the | 7. MASTER AND SERVANT 288(1), 289(1)

CONTRIBUTOBY NEGLIGENCE ASSUMPTION said Hazel Juanetta Dorsey, the minor child

OF RISK QUESTION FOR JURY. of the plaintif and defendant," and substi

In action for injury sustained by plaintiff tute therefor a inding that the defendant 18 while engaged in repairing defendant's passennot an immoral or incompetent or unft pero and assumption of risk held, under the evidence, son to have the care, custody, and control of

for the jury. said minor child, and that she be awarded

8. EVIDENCE 220(3) - DECLARATIONS OF the care, custody, and control of said child

THIRD PERSON. as stipulated by the plaintif and the defend. Declarations of plaintiff's mother, relating ant. It is further ordered that the said to treatment of his eye after injury, not made court amend its conclusions of law, and in plaintif's presence, were inadmissible.

EVIDENCE ADMISSIenter a decree to conform to the foregoing 9. DAMAGES 59

BILITY. directions of this court. Defendant is award.

In action for injuries sustained by plaintiff ed her costs on this appeal.

servant, where defendant railroad set up negliMCCARTY, CORFMAN, THURMAN, and of his physician, evidence respecting acts of

gence of plaintiff in refusing to follow direction GIDEON, JJ. concur.

plaintiff's mother in treating plaintiff's eye were properly excluded.

10. WITNESSES 383—IMPEACHMENT. (52 Utah, 116)

A witness cannot be impeached as to imma. KUCHENMEISTER v. LOS ANGELES & 8.terial statements. L. R. CO. (No. 3139.)

11. TRIAL 296(11)-INSTRUCTION Not SUP

PORTED BY EVIDENCE. (Supreme Court of Utah. april 20, 1918.) Although statement in charge authorizing

consideration of question whether injury had 1. COMMERCE 27(1)-INJURY TO SERVANTS affected plaintiff's earnings in the past was not -FEDERAL EMPLOYERS' LIABILITY.

supported by pleadings or proof, where jury was To recover under the Federal Employers' l instructed that they must be guided by the eviLiability Act (Act Cong. April 22, 1908, c: 149, dence alone defendant was not prejudiced. 35 Stat. 65 (U. S. Comp. St. 1916, 98657

RIGHT OF 86651), both employer and employé must at the 12. PARENT AND CHILD 5(3) time of injury be engaged in interstate com

PARENT TO EARNINGS OF CHILD. merce.

If plaintiff, a minor, was supporting himself 2. COURTS 97(5)— FOLLOWING DECISION or claiming such earnings, he was entitled, in an

from his own earnings, and his parents were not FEDERAL COURTS. A decision of a federal court as to whether since by Comp. Laws 1907, 88 1544, 3243, the

action for injuries, to recover for their loss, an employé is engaged in Interstate commerce, earnings of a minor do not absolutely belong especially it more recent should be followed in to his parents. preference to decision of a state court, since the question involved is one upon which the federal courts have the ultimate right to speak.

Appeal from District Court, Salt Lake 3. COMMERCE 27(8) "'INTERSTATE Com. County; Wm. H. Bramel, Judge. MERCE."

Action by Frank George, Kuchenmelster, Plaintiff employed in roundhouse and ma- by his guardian :ad litem Katherine Kuchen. chine shop. injured while engaged in repairing a meister, against Los Angeles & Salt Lake passenger engine which before the injury had been used exclusively in Interstate commerce,

Railroad Company. Judgment for plaintir, was being repaired so as to be again used for the) and defendant appeals. Affirmed.

For other onses soo samo toplo and KEY-NUMBER 1o all Key-Numbered Digests and Indexes

726
nimi 172 PACIFIO REPORTER 1771

(Utah .?"Dana T. Smith, of Salt Lake City, for ap-, mitting that question to the Jury; (2) that pellant. Marloneaux, Straop, Stott & Beck, plaintif, bad assumed the risk; (3) errors to of Salt Lake City, for respondent.

the admission and exclusion of evidence; and

(4) errors in charging the jury. FRICK, C. J. The plaintin, a minor past

Counsel for defendant earnestly insists 16 years of age, by his mother as guardian that the first assignment should prevail. As ad litem, brought this action to recover dam- before stated, defendant admitted that it ages for the loss of his eye, which he alleged was engaged in both Interstate and intrastate he lost by reason of injury sustained through commerce, but denied that the plaintiff at the negligence of the defendant while he was the time of the injury was engaged in inter: employed in its roundhouse and machine state commerce. shop at Caliente, Nev., on August 21, 1916.

[1] It is not necessary to cite authorities The action is based upon the Federal Em- upon the proposition that, in order to reployers' Liability Act. Plaintirr, in sub-cover under the Federal Employers' Llabilstance, alleged that at the time of the injury Ity Act, both the employer and the employé the defendant was engaged in interstate com- must at the time of the injury be engaged in merce as a common carrier; that on the 21st

Interstate commerce. Plaintiff's evidence day of August, 1916, while the plaintifr was tended to prove that plaintin lived with his engaged in repairing certain parts of defend-mother and sister at Caliente, Nev.; that deant's passenger engine No. 3425, which was rendant's engine No. 3425, which is the then being used in Interstate commerce, he engine that was being repaired by plaintif was injured in his eye through the negligence when he was injured, for a number of years of the defendant, stating the particular acts immediately preceding the accident had been of negligence in detall; that by reason of used exclusively in hauling Interstate passuch injury he lost his eye and is permanent- senger trains between Caliente, Nev., and ly injured.

Milford, Utah; that plaintit had seen it The defendant admitted that it was en- used for that purpose continuously for about gaged in both Interstate and Intrastate com- three years immediately preceding the time merce, but denied the alleged acts of negli. the plaintif was injured; that when the gence. It set up contributory negligence on engine was not out on the road and in use the part of the plaintif, and averred that he It usually was in defendant's roundhouse at had assumed the risk, and also set forth the Caliente, Nev.; that a short time before affirmative defense that the plaintite, by his the accident, perhaps a day or so, the engine own negligence in refusing to follow the di-was left at defendant's roundhouse and rections of his physician, had greatly aggra- machine shop at Caliente, Nev., to be "overvated the injury, and that the removal of his hauled"—that is, some repairs were requireye was made necessary by reason of his owned to be made upon it; that plaintir had negligence, etc. The defendant denled, how been in the employ of the defendant sluce ever, that the plalntitr, at the time of the 10- June 23, 1916; that for about six weeks prior jury, was engaged in Interstate commerce.

to the accident he had performed different The case was submitted to a jury, which kinds of work about the roundhouse and found the controlling issues in favor of the machine shop as he was directed from time plaintifr. The jury also found that at the to time by defendant's foreman who was in tiine of the injury both the plaintifr and the charge of the roundhouse and machine shop defendant were engaged in interstate com- at Caliente; that on the 21st day of August, merce. The jury also found that the plain. 1916, plalotif .was directed to assist another tin was guilty of contributory negligence, but employe to do some repair work on said did not ind whether such negligence related engine No. 3425; that in making such repairs to the doing of the work or to plaintif's con- It was necessary to grind down or reduce in duct in the treatment of his eye.

size a certain pin which was a part of sald The allegations respecting the two grounds engine, and plaintiff was directed to do that of contributory negligence were supported by work on an emery wheel that was provided substantial evidence on the part of the de for that purpose by the defendant; that fendant.

.wblle plaintifr, prior to that time, had, on The jury found that plaintiff had sustained several occasions, used the emery wheel in damages to the extent of $7,500, but reduced question yet he was not aware of or did not that amount, on account of the contributory realize the danger incident to the grinding negligence of the plaintiff, in the sum of of metals on emery wheels which would $2,500, acd thus returned a verdict in his cause sparks and small particles to iy of favor in the sum of $5,000 as the damages from such wheels while grinding such metals; sustained by him. Judgment was entered that he was not informed of such danger by on the verdict, and the defendant appeals. defendant's foreman nor by any one else, and

Counsel for defendant has argued four as- that no "goggles” or eye-protectors were signments of error: (1) That the evidence furnished by the defendant with which to "is wholly insuficient to support the finding protect the eyes while grinding as aforesald; that the plaintif was engaged in Interstate that while he was in the act of grinding down .com.uerce at the time he received his injury", the pin as directed, which was to be used other hard substance which was thrown off follow the federal court rather than the state from said emery wheel flew into and pene court, since the question involved is one upon trated his eye, and caused the same to be which the federal courts have the ultimate sore and inflamed to such an extent that it right to speak. had to be and was removed from the socket, [3] In our judgment the decision in the by reason of which he became and is per- case of Law v. Illinois Cent. Ry. Co., 208 manently injured; that he left the round. Fed. 869, 126 C. C. A. 27, L. R. A. 1915C, 17, house of the defendant on the day of the is decisive of the question that the plaintiff, accident, and that he did not know how long in making the repairs on the engine in quesit took thereafter to complete the repairs on tion, was engaged in interstate commerce. the engine aforesaid ; that the next time he [4) In view of what is there said, it is alsaw the engine it was standing dead on the so clear that the evidence in this case is side track at Milford, Utah, and in about sufficient to sustain the finding of the jury three weeks after the accident he saw the that the plaintiff was so engaged at the time engine in use in interstate commerce-that of the accident. As before stated, the defend. is, it was hauling interstate passenger trains ant produced no evidence upon that question, precisely the same as was the case for the and hence, if there was any substantial eviseveral years before the accident; that dur- dence from which the jury had the right to ing all of the time mentioned, both before infer that preceding the accident and before and after the accident, said engine was being it was repaired the engine in question was operated by the same engineer. The defend- being used exclusively in interstate comant produced no evidence wbatever respecting merce, and that after the repairs were comthe use to which the defendant put the engine pleted it was intended to be and was again either before or after the accident. Defend- used in that capacity, the evidence was sufant did, however, produce evidence on the ficient to sustain the finding that the engine other questions, and the witnesses for the de was an instrumentality which was used in fendant in some respects disagreed with plain. interstate commerce at the time of the actiff's statements, and in other respects denied cident, and that the plaintiff, in being engaghis testimony and gave a different version ed in repairing it so that it could be continued of the accident and the care defendant had to be so used, was also engaged in interstate exercised in preventing the same, In view, commerce. The inferences that may be dehowever, that there is no contention that duced from the undisputed facts in the case there was not substantial evidence upon at bar are quite different from the inferences every material issue except the one that the that can legitimately be deduced from the plaintiff at the time of the injury was en- case of Minneapolis & St. L. Ry. Co. v. Wingaged in interstate commerce, we shall re- ters, supra, on which counsel relies. In that frain from stating the evidence in other case it was stipulated that the engine on particulars, except in connection with the which Winters was making repairs when he point decided, if deemed necessary.

was injured had, before the repairs were Defendant's counsel has cited a large num-made, been used in both interstate and inber of cases which he contends sustain his trastate commerce. Indeed, under the facts contention that the plaintiff, at the time of there disclosed, the engine on one day might the accident, was not engaged in interstate have been engaged in interstate commerce commerce. Among the cases cited upon that exclusively, while on the following or any point are the following: Minneapolis & St. subsequent day it might have been used exL. Ry. Co. v. Winters, 242 U. S. 353, 37 Sup. clusively in intrastate commerce. Again, it Ct. 170, 61 L. Ed. 358; Pedersen v. Delaware might have been used in both interstate and Co., 229 0. S. 146, 33 Sup. Ct. 648, 57 L. Ed. in intrastate commerce on the same day. The 1125, Ann. Cas. 1914C, 153; Shanks v. Dela- United States Supreme Court, therefore, held ware, etc., Ry. Co., 239 U. S. 556, 36 Sup. Ct. that, inasmuch as it must appear that the 188, 60 L. Ed. 436, L. R. A. 1916C, 797 ; | instrumentality upon which the injured emChicago, etc., Ry. Co. v. Harrington, 241 U. ployé is engaged and injured is at the time S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941; of the injury being used in interstate comPierson v. New York S. & W. Ry. Co., 83 N. merce, and that the burden of proving that J. Law, 661, 85 Atl. 233. It is not necessary fact rests upon, the injured employé who to refer to the other cases cited by counsel, seeks to recover under the federal Employsince all that he contends for is covered by ers' Liability Act, the plaintiff in that case those we have last above cited. We remark had failed to prove that the engine there in that while plaintiff's counsel concede that question at the time of the injury was enthe Pierson Case, referred to, sustains de-gaged in interstate commerce. As before fendant's contention, yet it must not be over- stated, the inferences that may be deduced looked that that case emanates from a state from the undisputed evidence in the case at court and not from a federal court.

bar are clearly to the effect that the engine [2] If, therefore, there is a decision from in question for a long time immediately a federal court which is decisive of the ques- prior to and up to the time of the injury tion here, and especially if the federal deci- was exclusively used in interstate commerce, sion is one that is more recent than the one and that it was being repaired so that it cited from a state court, it is our duty to might be continued to be so used. Indeed,

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