(185 P.) AUGOOD v. HOAR. (No. 4138.) (Supreme Court of Montana. Dec. 30, 1918.) Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. named appellant has failed to file the record on appeal herein within the time specified by law, the appeal in this cause is hereby dismissed. Veazey & Veazey, of Great Falls, for ap- GARRIGA v. CHICAGO, M. & ST. P. RY. pellant. McCaffery & Tyler, of Butte, for respond ent. PER CURIAM. Pursuant to stipulation of the parties herein, it is ordered that the appeal in the above-entitled cause be, and the same is hereby, dismissed; each party paying his own costs. CO. (No. 4152.) (Supreme Court of Montana. Jan. 20, 1919.) Appeal from District Court, Missoula County; Theo. Lentz, Judge. Henry C. Stiff, of Los Angeles, for appellant. Mulroney & Mulroney, of Missoula, for respondent. PER CURIAM. The above-entitled cause BOWN V. BOWN (two cases). (Nos. 4064, having been compromised and settled, the ap 4149.) (Supreme Court of Montana. June 17, 1918.) Appeal from District Court, Missoula County; R. Lee McCulloch, Judge. peal herein is hereby dismissed as per stipulation of the parties. McCormick & Russell, of Missoula, for ap- MCCLELLAN v. McLURE et al. (No. 4291.) pellant. Mulroney & Mulroney, of Missoula, for respondent. PER CURIAM. Upon motion of the appellant herein, the appeals in the above-entitled causes are this day dismissed. BRONSON v. FITCH. (No. 4334.) (Supreme Court of Montana. Dec. 30, 1918.) (Supreme Court of Montana. Oct. 16, 1918.) Appeal from District Court, Granite County; R. Lee McCulloch, Judge. H. H. Parsons, of Missoula, and S. P. Wilson, of Deer Lodge, for appellant. Wingfield L. Brown and R. Lewis Brown, both of Phillipsbury, and Maury, Wheeler & Melzner, of Butte, for respondents. PER CURIAM. Pursuant to stipulation of the parties herein, the appeal in this cause is hereby dismissed. Appeal from District Court, Hill County. Talbert Erickson, of Havre, for appellant. POSTAL TELEGRAPH CABLE CO. v. DONStranahan & Stranahan, of Havre, for respondent. PER CURIAM. Upon motion of respondent to dismiss the appeal herein for failure of appellant to file his record on appeal within the time prescribed by law, the appeal is hereby dismissed. EVANS V. MORAN et al. (No. 4393.) (Supreme Court of Montana. April 14, 1919.) Appeal from District Court, Richland County; C. C. Hurley, Judge. R. O. Lunke, of Sidney, for appellant. F. P. Leiper, of Glendive, and F. J. Matoushek, of Sidney, for respondents. PER CURIAM. Upon motion of respondent herein, and for the reason that the above OVAN. (No. 4089.) (Supreme Court of Montana. May 6, 1918.) Appeal from District Court, Silver Bow County. J. A. Poore, of Butte, for appellant. PER CURIAM. Upon motion of the appellant herein, the appeal in the above-entitled cause is hereby dismissed. SMITH V. MILLER. (No. 4246.) (Supreme Court of Montana. Sept. 1, 1918.) Appeal from District Court, Yellowstone County; A. C. Spencer, Judge. B. L. Price, of Laurel, and Dillavou & Moore, of Billings, for appellant. Thad S. Smith, of Billings, for respondent. PER CURIAM. The motion of respondent to dismiss the appeal herein was, after due consideration by the court, granted, and the appeal is accordingly dismissed. STATE v. COLBY. (No. 4148.) (Supreme Court of Montana. June 22, 1918.) Appeal from District Court, Sanders County; J. M. Clements, Judge. STATE ex rel. DUNN v. TREACY. STATE ex rel. MCCARTHY v. TREACY. (Nos. 4395, 4396.) (Supreme Court of Montana. April 5, 1919.) Original applications for writ of mandate to compel respondent, as Clerk of the City of Butte, Montana, to place the names of relators in the above-entitled proceedings upon the official ballot and the voting machines to be used in the municipal election to be held J. T. Mulligan, of Spokane, Wash., and H. in said city on the 7th day of April, 1919. C. Schultz, of Thompson, for appellant. May 31, 1918.) Appeal from District Court, Richland County; C. C. Hurley, Judge. Wheeler & Baldwin and Nolan & Donovan, all of Butte, for relators. Henry C. Smith and William T. Pigott, both of Helena, and D. M. Kelly and William Meyer, both of Butte, for respondent. PER CURIAM. This cause having this day, after taking of proof and hearing arguments of counsel for respective parties, been submitted for judgment and decision, the court, after due consideration, being of opinion that within the time intervening between the hour of submission (at about 4:30 in the R. O. Lunke, of Sidney, and Henri J. Hask-afternoon of Saturday, April 5, 1919), and ell, of Glendive, for appellant. the day of election (the Monday following, Jos. B. Poindexter, Atty. Gen., for the April 7, 1919), it could not intelligently ex State. PER CURIAM. Upon motion of the appellant herein, and for good cause shown, the appeal in the above-entitled cause is this day dismissed. amine and determine the important questions presented by counsel, and for the further reason that after said election such questions would be only moot questions, hereby orders and adjudges that the above causes be dis missed. STATE ex rel. DUNN et al. v. DISTRICT all of Butte, for relators. Lester H. Lobbe, Co. Atty., and Jos. R. Wine, Asst. Co. Atty., both of Helena, for respondents. PER CURIAM. This cause coming on for judgment and decision, it is, on consideration, now here ordered and adjudged by this court that the motion to quash, interposed by respondents, be and the same is hereby sustained, and the proceeding is accordingly dismissed. STATE ex rel. FORD v. ANDERSON. (No. 4322.) (Supreme Court of Montana. Dec. 9, 1918.) Original application for writ of mandate to compel the respondent, as Clerk and Recorder of Silver Bow County, to permit relator, his assistants, and such other persons as he might employ, to inspect and examine all public documents and records relating to the general election held in Silver Bow county on issued on November 26, 1918, made returnNovember 5, 1918. Alternative writ ordered able on December 2, 1918. NOTE. The court thereafter, and prior to the day set for hearing, having been notified that respondent, Anderson, had complied with the writ asked for by relator, on December 9th ordered that respondent pay the costs of the application, amounting to $10.45. S. C. Ford, Atty. Gen., and Frank Woody, Asst. Atty. Gen., for relator. (55 Utah, 298) (185 P.) FOXLEY V. GALLAGHER et al. (No. 3396.) (Supreme Court of Utah. Dec. 1, 1919.) 1. APPEAL AND ERROR 1058(2)-EXCLUSION OF EVIDENCE HARMLESS ERROR. Joseph W. Rozzelle, of Salt Lake City, for appellants. W. J. Lowe and Charles E. Foxley, both of Brigham, for respondent. THURMAN, J. The plaintiff, James II Where every legitimate purpose for which Foxley, a minor, while traveling on a motor. a former question to which objection was sus- cycle in a northerly direction, October 27. tained could have been asked was fully covered 1918, on a public highway in Box Elder by the answer of the same witness to a subse- county, Utah, came in collision with an auquent question, any error in sustaining objec-tomobile driven in the opposite direction by tion to the first question was harmless. 2. HIGHWAYS 183-PASSENGERS IN AUTO MOBILE NOT LIABLE FOR COLLISION. Passengers in an automobile with the owner thereof are not liable for injuries to a motorcycle rider collided with, unless they were engaged in a joint enterprise with the owner of the car, or or their own part were negligent. F. H. Gallagher, one of the defendants. The plaintiff received serious personal injuries ir the collision, and his motorcycle was like wise considerably damaged. G. Foxley, brought this action to recover Plaintiff, by his guardian ad litem, Jame damages for the injury so sustained. A jury found the issues in favor of plaintiff, and 3. NEW TRIAL 110-VERDICT MAY BE SET judgment was entered thereon. All of the ASIDE BY COURT ON OWN MOTION. Under Comp. Laws Utah 1917, § 6983, in an action against several defendants, where the court considered the evidence against some of the defendants insufficient to sustain verdict against them, it should have set the verdict aside of its own motion. 4. APPEAL AND ERROR 977(5)-COURT DOES NOT ERR IN FAILING TO SET ASIDE VERDICT ON OWN MOTION. Where certain defendants, neither of themselves nor by their counsel, requested or moved the trial court to set aside the verdict as against them as unsupported by evidence, the assignment that the court erred in failing to act on its own motion cannot be sustained except perhaps in a very extreme case. defendants appealed from the judgment, but The automobile was owned and driven by the defendant F. H. Gallagher; the other defendants were his wife and friends. The business upon which they were traveling ap pears to have been a Sunday excursion for pleasure, from Salt Lake City to Logan and return. It is claimed by respondent that appellants were engaged in a joint enterprise with the driver, F. H. Gallagher, whose neg 5. APPEAL AND ERROR 237(5)-MOTION FOR ligence caused the collision, and that appel NEW TRIAL EQUIVALENT ON APPEAL TO RE- Motion of several defendants for new trial on account of insufficiency of the evidence to justify verdict against them was equivalent to request for a directed verdict, and should have the same effect on appeal, though the motion was submitted without argument, and disposed of without specification of the particulars in which the evidence was claimed to be insufficient. lants are therefore jointly liable for the injury. On the other hand, appellants contend they were merely invitees of Gallagher, had no control whatever over his conduct and management of the machine, and were in no manner responsible for the injury. The only evidence relied on by respondent in support of his contention as to a joint enterprise is the testimony of one of the appellants, Jerry Toomey, who testified in substance that he 6. APPEAL AND ERROR 294(1) — INSUFFI- had been invited by the Gallaghers to take CIENCY OF EVIDENCE WAIVED BY FAILURE TO If after failing to move for directed verdict defendants had also failed to move for a new trial for insufficiency of evidence to sustain verdict against them, the question of the insufficiency of the evidence would not have been waived on appeal.1 Appeal from District Court, Box Elder County; J. D. Call, Judge. Action by James H. Foxley, by his guardian ad litem, against F. H. Gallagher and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded for new trial. this trip. He said he thought he would be permitted to pay his share of the expenses. He had no understanding with Gallagher to that effect, but was told by defendant Schaaf "it was to be fifty-fifty." He paid his portion of the gasoline expense to defendant Schaaf, who settled with Gallagher. This phase of the case will be referred to later. [1] During the trial of the case one Charles Whitworth was sworn as a witness for defendants. He was conducting a garage business at Brigham City, was called by de fendant F. H. Gallagher to visit the place where the collision occurred on the evening of the accident. It was dark when he arrived there and was raining very hard. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes After describing his efforts to remove the automobile from the road and his experience as a garage man, he was asked in substance to state, in view of all he saw and did concerning the automobile, and in view of his experience as a garage man, whether the automobile was on the east or west side of the road at the time of the collision. The question was objected to by respondent and objection sustained. The question appears to be somewhat involved. It asks not only as to what the witness saw and did respecting the automobile in order to reach a conclusion as to its position at the time of the collision, but also includes as a factor his experience as a garage man. However, this assignment of error is without merit for the reason that the witness was asked on redirect if he had made any examination for the purpose of determining the position of the automobile, as to whether it was on the east or west side of the road when the collision occurred, and he answered he did not. Every legitimate purpose for which the former question could have been asked was fully covered by the answer of the witness. [2, 3] On the question of the insufficiency of the evidence to sustain the verdict appellants contend that as against them there was no evidence whatever as to their negligence or responsibility for the accident; that they were merely invitees of defendant F. H. Gallagher, who owned and drove the automobile, and, as before stated, had nothing whatever to do with his control and management of the machine. Under these circumstances they insist that the evidence against them is wholly insufficient to support the judgment. In our opinion this contention of appellants is unassailable. There is no evidence whatever of their participation in a joint enterprise in a legal sense so as to render them liable, nor is there evidence of any act or omission on their part constituting negligence. 33 Cyc. 1015 to 1017, inclusive. Even the trial court seemed to appreciate the fact that the verdict was wrong as to some, if not all, of the appellants. Respondents, however, attempt to meet this situation by the undisputed fact that appellants made no motion for a nonsuit at the close of plaintiff's evidence, nor any request for a directed verdict when the case was submitted to the jury. It is apparently assumed by respondent's counsel that, no matter how insufficient the evidence may be, or whether or not there is any evidence at all to support a particular hypothesis, if a party omits to move for a nonsuit, or to request a peremptory instruction, the court can give him no relief unless the court of its own motion sees fit to set the verdict aside. The trial court seemed to be imbued with the same idea. The record discloses that at the time the attempted appeal of defendant F. H. Gallagher "The record may show in this case that at the time the case was tried there was no motion for a nonsuit. The fact is the court expected the defendant's counsel to make a motion for nonsuit as to some of these defendants. The court also expected and looked for a motion for a directed verdict as to some of the defendants. That was not made, and it appeals to the court that the defendant Gallagher desired to have all these parties retained for some purpose, thinking he would be benefited thereby. I also expected there would be a motion for a new trial on this ground. And at the time the motion for a new trial was made I asked the parties to proceed to argue. It was submitted without argument. There was no one here to press the motion, and if there had been a motion made, I want to say now, no doubt, some of these defendants, not designating which ones, would have been dismissed. This statement may be inserted in lieu of the court's inserting it in the settlement of the bill, because I want the Supreme Court to know just what the record was." The excerpt quoted demonstrates conclu sively that the trial court not only understood that the evidence against some of the defendants was insufficient to sustain a verdict against them, but also considered itself powerless to grant relief. In this respect the court was in error. Understanding and viewing the case as it did, the just and prudent thing for the court to have done would have been to set the verdict aside. Comp. Laws Utah 1917, § 6983, provides: "The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties, when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice." [4] We are not disposed, however, to go so far as to hold that the court committed reversible error in failing to act upon its own motion. Besides, the failure of the court to act in the present case is not assigned as error, and, if it had been, such assignment should not prevail. Hartford Life Ann. Ins. Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496; Home Fire Ins. Co. v. Phelps, 51 Neb. 623, 71 N. W. 303; Johnson v. London G. & A. Co., 115 Mich. 86, 72 N. W. 1115, It 40 L. R. A. 440, 69 Am. St. Rep. 549. would be an extreme case in which a trial court shoud be held responsible for not acting upon its own motion in behalf of a party litigant when that party by himself or counsel fails or neglects to seasonably make a request or motion, for such action on the part of the court. Our only justification dwelling upon this matter is because the question was mooted in the oral argument. for (185 P.) of defendant. Respondent, on appeal, contended that this court could not review the evidence because no motion had been made in the court below for a new trial. The court held against this contention, reversed the judgment, and granted plaintiff a new trial. The reasons given are cogent and convincing. The opinion, written by Mr. Justice Frick, was unanimously concurred in by his associates. After stating argumentatively the reason for its conclusion, the court said: move for a nonsult or request a directed | grant his motion and also the ruling in favor verdict, they did, nevertheless, move for a new trial on several grounds, one of which was insufficiency of the evidence to justify the verdict. That was equivalent to a request for a directed verdict and should have the same effect on appeal. The fact that the motion was submitted without argument and disposed of by the court without specification of the particulars in which the evidence was claimed to be insufficient does not alter the case. The trial court heard the facts at the trial. A motion for new trial on the grounds of insufficiency of the evidence was sufficient as a reminder and made it the duty of the court to review the evidence. The notice and motion was a full compliance with the provisions of Comp. Laws Utah 1917, §§ 6978 and 6979, relating to notice and motion for a new trial. [6] If, however, after failing to move for a directed verdict, appellants had also failed to move for a new trial on the grounds mentioned, respondent's contention would have been correct and amply sustained by many of the authorities cited. Reed v. Scott, 50 Okl. 757, 151 Pac. 484; Wakely v. Johnson, 115 Mich. 285, 73 N. W. 238; Shmit v. Day et al., 27 Or. 110, 39 Pac. 870; Seeman et al. v. Levine et al., 205 N. Y. 514, 99 N. E. 158; Oaks v. Samples, 57 Okl. 660, 157 Pac. 739; Heiman v. Felder, 178 Iowa, 740, 160 N. W. 234; Barcus v. Prokop, 29 S. D. 39, 135 N. W. 756. Many of the cases last cited go to the full extent claimed by respondent, that moving for a new trial on the grounds of insufficiency of the evidence and adverse ruling thereon excepted to will not save the question on appeal. Within the purview of those cases the question can only be raised by motion for a nonsuit or by request for directed verdict. Such seems to be the effect of the decisions cited from Oregon and Oklahoma. But, whatever may be the holding of the courts in other states under their local statutes upon this important question of practice, the question here is no longer open. It was definitely and conclusively determined in the case of Law v. Smith, 34 Utah, 395, 98 Pac. 300. The case is a leading one in this jurisdiction and deserves more than a passing notice. The plaintiff, Law, as county attorney of Cache county, brought an action, under certain provisions of the statute, against the sheriff of the same county to remove him from office. The case was tried to a jury. At the close of the evidence each of the parties moved the court for a directed verdict in his favor. The court refused the motion of plaintiff, granted the motion of defendant, and judgment was entered accordingly. Plaintiff, without moving for a new trial, appealed from the judgment, assigning as error the refusal of the court to "So, likewise, in case a party desires to challenge the verdict of a jury upon the ground that the verdict is not sustained by the evidence, he must do so by a motion for a new trial, unless during the trial he raised the legal question involved by a motion for a nonsuit or for Unless he has presented a directed verdict. either a motion for a non suit or for a directed verdict, the trial court has had no opportunity to pass upon the legal sufficiency of the evidence during the trial, and cannot do so unless a motion for a new trial upon the ground of the insufficiency of the evidence is presented to it. When, however, a motion for a nonsuit or a motion for a directed verdict has been made and ruled upon, the court has had the Opportunity to pass upon the legal sufficiency of the evidence precisely the same as upon a motion for a new trial, and hence the latter motion, for the purposes of a review, may be dispensed with. In this way all the orders, rulings, and decisions of the trial court, whether made during the trial or on motion for a new trial, can be brought before this court for review, and on all of them the court need to would bring about the incongruity of requiring pass judgment but once. Any other holding the trial court to pass twice on some matters, while it may do so but once on others." It is not necessary to interpose any explanation as to the meaning of the language quoted. It is self-explanatory, and in the opinion of the writer effectually determines the law of this jurisdiction upon the point in decisive of the question presented here, and, question. The decision in that case is clearly as the court as now constituted is in hearty accord with both the conclusions reached and the reasons given therefor, we feel both legally and morally bound to adopt the rule there laid down as controlling in the case at bar. Counsel for respondent have referred to several Utah cases all of which go to the point that this court will not consider questions not raised in the trial court. As such cases have no application whatever to the question presented here, we have not taken the trouble to cite them in this opinion. The judgment of the trial court as to appellants is reversed, and the cause remanded for a new trial. Appellants are awarded costs on appeal. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur. |