Petition — Fitzgerald v. Intermountain Farmers Ass'n

e Court, U.S

LED

JUL 3 1978

In the Supreme Court of

Hnited States

MICHAEL RODAK, JR., CLERK

Octoser TERM, 1978

} SER: 78-20

Jim FITZGERALD,

Petitioner,

Vv.

INTERMOUNTAIN FARMERS ASSOCIATION

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF UTAH

James N. Barber

BARBER & VERHOEF

431 South Third East

Salt Lake City, Utah 84111

THOMAS R. BLONQUIST

Second Floor

Metropolitan Law Building

431 South Third East

Salt Lake City, Utah 84111

Attorneys for Petitioner

J. Thomas Greene

Dorothy C. Pleshe

CALLISTER, GREENE & NEBEKER

. 800 Kennecott Building

Salt Lake City, Utah 84133

DE LYLE H. CONDIE

1224 Kennecott Building

Salt Lake City, Utah 84133

. Attorneys for

Intermountain Farmers Association.

ae =a ——- ——— -

SS — en

Page

SE na Ee 1

pS TTI Se A OS SE SO EE Ce 2

Constitutional Provisions Involved ............................ 2

TL 8

Statement of Material Facts ~..............20.-..2.........----- 8

Reasons for Granting the Writ ..........................-.--- 6

I a o cieeaeiiinecenmecetinsiiniitedibasn 12

ERR ESN eee See en a ee i

IE ITE SEES SE SR a eee eae eee Vill

I Caan a ealiaesibscctamneimeconannoinwen ix

CITATIONS

Constitutions:

i, I, I, Bann cctsincseccectene 8

a | ene 8

Fe 2

Utah Constitution, Art. VIII, Sec. 2 ................ 2, 4

Cases:

Berger v. U.S., 255 U.S. 22, 65 L.Ed. 481, 41

OO mn 10

Botts v. U.S., 413 F.2d 41 (9th Cir., 1969) ........ 11

Hanger v. U.S., 398 F.2d 91 (8th Cir., 1968),

cert. den. 393 U.S. 1119, 22 L.Ed 2d 124,

89 S.Ct. 995 (1969), reh. den. 395 U.S.

971, 23 L.Ed. 2d 761, 89 S.Ct. 2106 (1969) 10

In Re Murchison, 349 U.S. 133, 99 L.Ed. 942,

new ae LT... 6, 8, 9

Johnson v. Mississippi, 403 U.S. 212, 29 L.Ed.

2d 423, 91 S.Ct. 1778 (1971) ee ecceeceecoeeoee- 6

INDEX—Continued

_ Page

Knapp v. Kinsey, 282 F.2d 458 (6th’Cir., 1956) 11

Martin v. U.S., 285 F.2d 150 (10th Cir., 1960),

cert. den. 8365 U.S. 858, 5 L.Ed. 2d 816, 81

S. Ct. 818 (1961), reh. den. 866 U.S. 915,

6 L.Ed. 2d 289, 81 S.Ct. 1088 (1961) ........ 11

Mayberry v. Pennsylvania, 400 U.S. 455, 27

L.Ed. 2d 582, 91 S.Ct. 499 (1971) ............ “

Offutt v. U.S., 848 U.S. 11, 99 L.Ed. 11, 75

Re WE TN aii ih senncncsthcsenecsantnne -

Palmer v. U.S., 249 F.2d 8 (10th Cir., 1957) .... 11

Petrey v. Holliday, 178 Ky. 410, 199 S.W. 67

Oi ae 12

Rapp v. Van Dusen, 850 F.2d 806 (8rd Cir.,

a scnciaiinieitiintosenens 9

State ex. rel. Turner v. Marshall, 128 Ohio St.

586, 176 N.E. 454 (1981) ........sccssscsesssesoeses .

Texaco, Inc. v. Chandler, 854 F.2d 655 (10th

Cir., 1965), cert. den. 383 U.S. 936, 15

L.Ed. 2d 1966, 86 S.Ct. 1066 (1966) ........ 9

Tumey v. Ohio, 273 U.S. 510, 71 L.Ed. 749, 47

S.Ct. 487, 50 A.L.R. 1248 (1926) ............ 6, 8

U.S. v. Bray, 546 F.2d 851 (10th Cir., 1976)... 11

U.S. v. Ritter, 540 F.2d 459 (10th Cir., 1976),

cert. den. Olson Farms v. U.S., 429 U.S.

951, 50 L.Ed. 2d 319, 97 S.Ct. 870 (1976) 10

U.S. v. Sciuto, 581 F.2d 842 (7th Cir., 1976) .... 6

Webbe v. McGhie Land Title Company, 549

F.2d 1858 (10th Cir., 1977) ......ccccsssssceeeeoe

Withrow v. Larkin, 421 U.S. 85, 48 L.Ed. 2d

712, 95 S.Ct. 1456 (1975) ..cceccccescssseescoeecenses 6, 7

Statutes:

Rule 76(e), Utah Rules of Civil Procedure ........ 2, 5

ee ee

In the Supreme Court of the

United States

Octroper TERM, 1978

) eee

Jim FiTZGERALD,

Petitioner,

Vv.

INTERMOUNTAIN FARMERS ASSOCIATION

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF UTAH

Jim Fitzgerald petitions for a Writ of Certiorari to

review a refusal of the Supreme Court of Utah to grant

the motion of the petitioner, Jim Fitzgerald, defendant

and appellant below, to have disqualified, on the grounds

of bias and prejudice, a judge who, sitting temporarily

as a member of the Utah Supreme Court, participated in

the decision on petitioner’s appeal and authored the

court’s opinion.

OPINION BELOW

The majority opinion of the Utah Supreme Court

in the case of Intermountain Farmers Association, plain-

tiff, vs. Jim Fitzgerald, defendant, (Appendix A, pages

xx-xx) is reported at 542 P.2d 1162, Utah, 1978. The

Utah Supreme Court’s denial of petitioner's motion to

have disqualified a member of the court (Appendix B,

pages xx-xx) is unreported. The Utah Supreme Court's

denial of petitioner’s petition for rehearing (Appendix

C, pages xx-xx) is unreported.

JURISDICTION

The decision of the Utah Supreme Court was entered

on January 21, 1978. On February 27, 1978, petitioner

filed a motion asking that Judge Duffy Palmer be dis-

qualified. (Judge Palmer is a judge of Utah’s second

judicial district and was asked to sit as a member of the

Utah Supreme Court, as provided for by Art. VIII, Sec.

2, of the Utah Constitution, in place of the Supreme

Court Justice who disqualified himself because he was the

trial judge below. Judge Palmer also authored the opin-

ion of the court.) Plaintiff's motion came on for hearing

on February 27, 1978, and the Utah Supreme Court de-

nied the motion. That same day, petitioner filed a peti-

tion for rehearing, pursuant to Rule 76(e) of the Utah

Rules of Civil Procedure, asking the court to reconsider

its opinion in the case. The petition for rehearing was de-

nied on April 7, 1978.

Jurisdiction of the United States Supreme Court is

invoked under 28 U.S.C.A. 1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

The Fifth Amendment to the United States Con-

stitution provides:

No person shall . . . be deprived of life, liberty or

property without due process of law...

[U.S.C.A. Const. Amend, 5, p. 4.]

The Fourteenth Amendment to the United Statés

Constitution provides:

. . nor shall any state deprive any person of

life, liberty, or property without due process of

law... [U.S.C.A. Const. Amend. 14, Sec. 1,

p. 4.]

QUESTION PRESENTED

Has a person been denied due process of law where

his case, on appeal, is considered by a judge who is close-

ly related by blood to a person who is in a management

position in a corporation which is a party to the case and

where such person has a direct and material interest in the

outcome of the case?!

STATEMENT OF MATERIAL FACTS

Intermountain Farmers, plaintiff in the lower court,

sued Jim Fitzgerald, a dairy farmer, to collect money

owing for cattle feed sold by Intermountain Farmers to

Mr. Fitzgerald. Mr. Fitzgerald counterclaimed for dam-

ages, alleging that Intermountain Farmers was negligent

in that it sold him defective feed, which caused injury

and death to his dairy cattle and reduced milk production.

After a nine-day jury trial, judgment was entered in

favor of Intermountain Farmers on its complaint and in

favor of Mr. Fitzgerald on his counterclaim in the amount

‘of $226,330.57. No appeal was taken from the judgment

in Intermountain Farmers’ favor, but Intermountain

Farmers appealed the judgment against it.

Utah Supreme Court Justice Gordon Hall (who,

prior to his being named to the state’s high court, had

been the trial judge) properly disqualified himself from

participating in the case on appeal. Pursuant to Art.

VIII, Sec 2, of the Utah Constitution, Judge Duffy

Palmer, a judge of Utah’s second judicial] district, was

asked to sit as a member of the high court.

The Utah Supreme Court, in an opinion authored by

Judge Palmer, reversed the decision of the trial court and

entered a judgment in favor of Intermountain Farmers.

After the opinion was handed down, Jim Fitzgerald

learned that Judge Palmer was the uncle of Steven Lee

Palmer, who was at all times materia] a division manager

of Intermountain Farmers. In that management position,

Steven Lee Palmer is directly answerable to the president

of Intermountain Farmers and has a direct and material

interest in the outcome of the appeal. At no time during

the proceedings did Judge Palmer disclose to Mr. Fitz-

gerald or his attorney his family relationship to the man-

agement of Intermountain Farmers.

Mr. Fitzgerald had not known of this relationship

before the opinion was released and had no reason to in-

vestigate any possible relationship, In fact, Mr. Fitz-

gerald did not even have reason to know that Judge Pal-

mer had been selected to sit with the Supreme Court to

consider his case. Since the appeal had been submitted on

the briefs, there was no oral argument at which the fifth

judge was announced. (Before the opinion was released,

4

ies

Mr. Fitzgerald's attorney had learned thet Judge Palmer

was participating in the decision, but he did not know

Judge Palmer was authoring the opinion which was sub-

mitted to the other members of the court.) Mr. Fitzgerald

and his attorney learned of the relationship between Judge

Palmer and Intermountain Farmers when a person, pre-

viously unknown to Mr. Fitzgerald, contacted him after

reading a newspaper account of the case in which it was

stated that Judge Palmer authored the opinion. This per-

son informed Mr. Fitzgerald that the judge who con-

sidered his case was related to a highly placed manager at

Intermountain Farmers. Mr. Fitzgerald and his attor-

ney verified this information and then filed a motion with

the Utah Supreme Court asking that Judge Palmer be

disqualified and that the court reconsider the case. In his

affidavit in support of the motion to disqualify Judge

Palmer, Mr. Fitzgerald’s counsel pointed out instances

where the opinion completely ignored competent evidence

that had been introduced at the trial and ignored the

findings of the jury, all of which demonstrated that Judge

Palmer, in his deliberations, had been dictated by preju-

dice and bias in favor of Intermountain Farmers. The

motion came on for hearing on February 27, 1978, but the

court characterized it as a disguised petition for rehear-

ing. The chief justice stated that if Judge Palmer was

biased in his decisien that bias would be apparent in a

petition for rehearing, and if a rehearing was granted,

the problem, if one existed, would be solved.

That same day, Mr. Fitzgerald filed his petition for

rehearing, pursuant to Rule 76(e) of the Utah Rules of

Civil Procedure. The petition and its supporting brief

5

identified mnamerous errors of law and incorrect state-

ments in the opinion Judge Palmer wrote. | ..,

The court denied Mr. Fitzgerald’s petition for re-

hearing on April 7,1978. austen .

REASONS FOR GRANTING THE WRIT

I.

It is a basic requisite of due process that a person

is entitled to have his case tried by a fair and impartial

jury whose decisions are untainted by bias or prejudice.

Withrow v. Larkin, 421 U.S. 35, 48 L.Ed. 2d 712, 95

S.Ct. 1456 (1975) ; Johnson v. Mississippi, 403 U.S, 212,

29 L.Ed. 2d 428, 91 S.Ct. 1778 (1971); In Re Murchi-

son, 849 U.S. 183, 99 L.Ed. 942, 75 S.Ct. 623 (1955) ;

Tumey v. Ohio, 278 U.S. 510, 71 L.Ed. 749, 47 S.Ct.

437, 50 A.L.R. 1248 (1926); U.S. v. Sciuto, 581 F.2d

842 (7th Cir., 1976). This requisite holds firm whether

the case is at the trial level, on intermediate appeal, or at

the highest level of appeal.

To ensure due process fairness, both statutes and

state constitutions have identified various situations and

relationships in which a judge is required to disqualify

himself. But the fact that in a particular case the judge

does not fit precisely into a proscribed situation or rela-

tionship should not mean he is not required to disqualify

himself. In light of the due process requirements of a

fair, impartial, and unbiased judge, such laws and con-

stitutional provisions should not be construed as enum-

erating exclusively the cases in which a judge must. be dis-

qualified. Rather, such laws are designed to identify sit-

uations and relationships where the probability of bias

and prejudice is so great or where a judge’s fairness and

impartiality are so likely to be questioned that the interests

of justice and due process are best served by the judge’s.

being disqualified. Withrow v. Larkin, supra.

The law does not permit a judge, who admittedly

falls into a proscribed situation or relationship, to refuse

to disqualify himself on the grounds that he, nevertheless,

is able to remain detached and to decide fairly and with-

out bias. Conversly, the fact that a law identifies specific

situations and relationships where a judge may not act

should not mean there are no other situations and rela-

tionships where due process would require disqualifica-

tion. If the due process mandate of a fair and impartial

judge is to have meaning, a judge must disqualify himself

whenever the likelihood of bias or prejudice is great or

whenever a judge’s fairness and impartiality are likely

to be questioned. Due process should require nothing

less.

In this case, Judge Duffy Palmer, a lower court

judge, was asked to sit with the Utah Supreme Court to

consider a case involving a corporation where his nephew,

the son of his brother, was in a key management position.

The corporate party was appealing a judgment of more

than $226,000. The nephew is directly answerable to the

president of the corporation and is manager of the

Farm Services Division of Intermountain Farmers.

The likelihood of Judge Palmer looking at the case with

bias and prejudice, whether conscious or subconscious, is

too great to permit him to participate. The correctness

of the decision is immaterial, as is the actual presence of

7

bias and prejudice, A litigant cannot be subjected to

doubt about a judge’s fairness and impartiality. He is en-

titled not only to a fair and impartial trial but also to

the belief that he is getting a fair and impartial trial.

State ex. rel. Turner v. Marshall, 123 Ohio St. 586, 176

N.E. 454 (1931). Where a judge’s nephew is in a key

management position with a corporation which is appeal-

ing a large judgment against it, there is a very strong

reason to question the judge’s ability to be impartial and

unbiased. In such a situation, due process should require

nothing less than disqualification.

“(Our system of law has always endeavored to pre-

vent even the probability of unfairness . . . Circumstances

and relationships must be considered . . . Such a stringent

rule may sometimes bar trial by judges who have no

actual bias and who would do their very best to weigh

the scales of justice equally between contending parties.”

In Re Murchison, supra. The constitutional requirements

are “not satisfied by the arguments that men of the high-

est honor” would not abandon their duties to weigh a case

fairly and impartially. T’umey v. Ohio, supra. Due pro-

cess rights cannot be compromised.

II.

Due process entitles a person not only to a fair and

impartial trial conducted by an unbiased judge without

prejudice but also to the appearance of a fair and impar-

tial judge. “[J]ustice must satisfy the appearance of

justice.” Mayberry v, Pennsylvania, 400 U.S. 455, 27

L.Ed. 2d 582, 91 S.Ct. 499 (1971); Offutt v. U.S., 348

U.S. 11, 99 L.Ed. 11, 75 S.Ct. 11 (1954) ; In Re Murchi-

son, supra.

That Mr. Fitzgerald was deprived of the appearance

of a fair and impartial judge is evidenced by the manner

in which he discovered Judge Palmer’s familia] relation-

ship to a member of Intermountain Farmers’. manage-

ment. A person, who did not even know Mr. Fitzgerald,

read a newspaper account of the case which stated that

Judge Palmer had authored the court’s opinion and then

contacted Mr. Fitzgerald to inform him that the case had

been decided by Judge Palmer in a way that greatly

benefitted his nephew. It can hardly be said that Judge

Palmer gave the appearance of being an unbiased judge

when a member of the general public who did not even

know Mr. Fitzgerald thought that Mr. Fitzgerald’s case

had not been decided by an impartial judge. The appear-

ance of a fair and impartial judgment had been destroyed,

in violation of Mr. Fitzgerald’s due process rights.

“For the proper administration of justice requires

of a judge not only actual impartiality but also the ap-

pearance of a detached impartiality.” Texaco, Inc. v.

Chandler, 354 F.2d 655 (10th Cir., 1965), cert den. 383

U.S. 936, 15 L.Ed. 2d 1966, 86 S.Ct. 1066 (1966) ; Rapp

v. Van Dusen, 850 F.2d 806 (8rd Cir., 1965). “[A]p-

pearance of impartiality is virtually as important as the

fact of impartiality.” Webbe v. McGhie Land Title Com-

pany, 549 F.2d 1858 (10th Cir., 1977).

The law recognizes that disqualification is appropri-

ate not only where there is actual or apparent bias and

prejudice but also when the circumstances are such that

the judge’s impartiality might be reasonably questioned.

See a discussion of this point in U.S, v, Ritter, 540 F.2d

459 (10th Cir., 1976), cert. den. Olson Farms v. U.S.,

429 U.S. 951, 50 L.Ed, 2d 819, 97 S.Ct. 870 (1976).

III.

Mr. Fitzgerald’s counsel made a motion for Judge

Palmer’s disqualification at the earliest opportunity.

Neither Mr. Fitzgerald nor his counsel initially knew

that Judge Palmer had been selected to consider this ap-

peal or that he would author the opinion nor did they

know of Judge Palmer's familial relationship to a mem-

ber of Intermountain Farmers’ management until after

the Supreme Court’s decision had been handed down, As

soon as Mr. Fitzgerald and his counsel learned of the

familial relationship and were able to verify it, a motion

to disqualify Judge Palmer was filed.

The Utah Supreme Court, however, refused to grant

the motion, choosing to characterize it as a disguised pe-

tition for rehearing. The chief justice pointed out that,

if Judge Palmer were biased and prejudiced in favor of

Intermountain Farmers, instances of his bias and preju-

dice would be apparent in a petition for rehearing and,

if indeed bias and prejudice were evident, a new hearing

would be granted and the case would be reconsidered.

A judge cannot be disqualified on the grounds of

bias and prejudice when a charge of bias is based on noth-

ing more than rulings in the case, Burger v. U.S., 255

U.S. 22, 65 L.Ed. 481, 41 S.Ct. 280 (1921); Hanger v.

U.S., 398 F.2d 91 (8th Cir., 1968) cert. den. 893 U.S.

10

1119, 22 L.Ed. 124, 89 S.Ct. 995 (1969), reh. den. 895

U.S. 971, 28 L.Ed. 2d 761, 89 S.Ct. 2106 (1969). Nor can

one scruitinize the decision of an appellate judge search-

ing for errors of law as evidence of bias and prejudice..

Adverse rulings are not grounds for disqualification. U.S.

v. Bray, 546 F.2d 851 (10th Cir., 1976); Botts v. U.S.,

413 F.2d 41 (9th Cir., 1969); Martin v. U.S., 285 F.2d

150 (10th Cir., 1960), cert. den, 865 U.S. 858, 5 L.Ed.

2d 816, 81 S.Ct. 818 (1961), reh. den. 366 U.S. 915, 6

L.Ed. 2d 289, 81 S.Ct. 1088 (1961); Palmer v. U.S., 249

F.2d 8 (10th Cir., 1957). One cannot look at erroneous

rulings and say a judge is biased and prejudiced because

he made those rulings. Rather, in furnishing a basis for

disqualification, the situation must be such that the bias

and prejudice and the facts from which it stems must have

existed before the case came before the judge. Knapp v.

Kinsey, 282 F.2d 458 (6th Cir., 1956). If, for some

reason, a judge should have been disqualified but was

not and the move to disqualify him comes only after the

trial or after ‘a decision has been rendered, erroneous rul-

ings of law can be viewed only as results of the preexist-

ing bias and prejudice; but in and of themselves, they

cannot be the sole evidence of bias and prejudice. If the

latter were permissable, a judge who was biased and prc)-

udiced would be allowed to hear and consider a case, and

if he made no erroneous rulings of law, his decision would

stand; but if he made errors of law, he would be disquali-;

fied, Clearly, this is not proper procedure. A judge who

has heard a case at trial or considered a case on appeal

but who should have been disqualified will be disqualified

ll

even if his decisior. vas correct and proper. Petrey vo. Hol-

liday, 178 Ky. 410, 199 S.W. 67 (1917). 3

In the affidavit supporting the motion to disqualify

Judge Palmer, counsel pointed out the familial relation-

ship between Judge Palmer and the division manager of

Intermountain Farmers and also pointed out conclusions

stated by Judge Palmer in the court’s opinion which evi-

denced bias. For example, in the opinion, Judge Palmer

stated there was no direct evi lence of certgin facts de-

termined at trial and, in his affidavit, Mr.'Fitzgerald’s

counsel enumerated instances of direct evidence on those

very points. These instances were, in actuality, immaterial

on the question of whether Judge Palmer should have

been disqualified as the familial relationship involved was

the reason for disqualification; but they were neverthe-

less included in the affidavit as examples of what resulted

from Judge Palmer’s bias.

The Utah Supreme Court, however, chose not to

consider this familial relationship question but, in effect,

told Mr. Fitzgerald that, if Judge Palmer was preju-

diced, that prejudice would be apparent in a petition for

rehearing in which errors in the decision could be set for-

ward. Such a method of determining whether a judge

should be disqualified is improper and, as such, is a vio-

lation of due process.

CONCLUSION

I,

Due process requires a judge to be fair, impartial,

unbiased, and unprejudiced. The fact that a judge is

12

closely related by blood to the management of a corporate

party in a case raises sufficient question as to his ability

to be unbiased, and his disqualification is required.

II.

Due process requires that the appearance of justice

be maintained. Where reasonable question arises as to a

judge’s impartiality, he should be disqualified in the in-

terest of the appearance of justice.

ITI.

Adverse rulings cannot be used to determine that a

judge was biased and prejudiced nor can proper rulings

or correct decisions be used to conclude that he was not.

Respectfully submitted,

James N. Barber

BARBER & VERHOEF

481 South Third East

Salt Lake City, Utah 841i1

THOMAS R. BLONQUIST

Second Floor

Metropolitan Law Building

431 South Third East

Salt Lake City, Utah 84111

Attorneys for Petitioner

18

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF UTAH

Intermountain Farmers Associa- Jan. 25 Ree’d

tion, a Utah corporation, No. 14728

Plaintiff and Appellant, FILED

i January 24, 1978

Jim Fitzgerald, Geoffrey J. Butler,

Defendant and Respondent. Clerk

PALMER, District Judge:

1. This case was brought by the plaintiff to recover

the amount due on open account for the sale of feed to

the defendant in the sum of $41,625.00 with interest and

reasonable attorney’s fees, This is an appeal from a

money judgment in favor of the defendant and respon-

dent, (defendant herein) on his counterclaim.

2. The defendant originally answered the plaintiff's

complaint with a general denial. Some months later the

defendant was permitted by the trial court to file an

amended answer and counterclaim for alleged injuries

and death to defendant’s dairy herd allegedly caused by

toxic levels of urea, and alleged inconsistencies and de-

ficiences of protein in the feed sold by the plaintiff to the

defendant.

3. There are five allegations made on the appeal as

follows:

One, the piaintiff-elleges thatthe court did not grant

attorney’s fees as provided in the contractual arrange-

ment between’ the’ plaintiff and ‘the ‘defendant. The de-

fendant has agreed: thdt attornéy’s fees ‘shéuld have been

allowed, thus there is no dispute on appeal on this item.

Two, the plaintiff alleges the instructions to the jury

relating solely to the issue of punitive damages was preju-

dicial error.

‘Three, the instruction to the jury to the effect of a

violation of a statute as it affects negligence was prejudi-

cial error.

Four, plaintiff's Motion for a Directed Verdict

should be granted and was error on the part of the court

not to have granted as requested by the plaintiff.

Five, prejudicial error was committed in the admis-

sion of evidence.

It is not necessary for this Court to treat the first

point of appeal by the plaintiff since the defendant has

agreed that an award of a reasonable attorney’s fee

should have been made.

The next point of contention is that evidence received

was on its face objectionable, but was allowed by the trial

court for the purposes of relating, “solely to the issue of

alleged punitive damage.” It is the opinion of the Court

that by allowing such evidence in without clarification

was prejudicial error and the case should be reversed on

this matter alone.

The Court’s instruction number twenty (20) gave

the following instruction:

You are instructed that certain exhibits herein-

after enwmerated have been offered and admitted

into evidence by the court as bearing upon the

question of notice to the plaintiff of a deficiency

in its feed. You are instructed that said ewhibits

should not be considered for any other purpose

or as bearing upon any other issue and do not

constitute proof of any other claim made by the

counterclaimant in this case. [Emphasis added. ]

However, after giving the instruction, the trial court

failed to advise the jury as to the numbers of the exhibits

that were so restricted. Thus, the jury reviewed all the

exhibits without restriction, when in fact some of the ex-

hibits should have been restricted to the issue of punitive

damages. The admonition of the court as provided in in-

struction number twenty was not sufficient to overcome

the prejudicial error created by allowing such evidence

in.

The transcript and the abstract were filled with ob-

jections of the plaintiff in an attempt to keep such ex-

hibits out because they were so remote in time and place

as not to be pertinent to this plaintiff. In reading the

abstract and the transcript, this Court can find no direct

evidence of the plaintiff’s feed being harmful; no tests

by state chemists of any toxicity or existence of urea in

the feed bought by the defendant from the plaintiff's

Spanish Fork Branch. The only contaminated food came

from different branches and this feed was not sold to the

defendant. As a matter of fact, during the time plaintiff's

feed was fed to the defendant’s cattle, the defendant’s

cattle’s milk production increased from 372 pounds less

iti

than the Salt Lake County yearly average production per

eow td 13657 over the yearly average of the Salt Lake

County production per cow. rw

The next. matter appealed from was the instruction

to the jury on the issue of negligence constituting preju-

dicial error. The court instructed that “the feed in ques-

tion was manufactured in violation of the statute, there

was negligence per se as a matter of law.”

This Court has long held that the violation of a stat-

ute does not necessarily constitute negligence per se and

may be considered only as evidence of negligence, and thus

the instruction of the court is prejudicial error and should

be reversed on that ground. See Thompson v. Ford Motor

Co., 16 Utah 2d 30, 395 P.2d 62 (1964). Justice Crockett,

in the Thompson case, noted that violation of a safety

standard set by statute or ordinance may be regarded as

“prima facie evidence of negligence, but is subject to

justification or excuse if the evidence is such that it reas-

onably could be found.” See also White v. Shipley, 48

Utah 496, 160 Pac. 441 (1916); Klafta v. Smith, 17 Utah

2d 65, 404 P.2d 659.

The Thompson case is the leading case in the State

of Utah. See the citation set forth in more detail in the

Thompson case.

The next pointed cited as error of the trial court was

that evidence offered and received was insufficient as a

matter of law to prove that the plaintiff’s negligence

proximately caused the defendant-counterclaimant’s dam-

age.

A careful reading of the transcript and the abstract

iv

substantiates the plaintiff’s contentions. Any food shown

to be contaminated in the evidence was from plants other

than the Spanish Fork Plant where the defendant pur-

chased its feed from the plaintiff. There was no showing

of any causal connection between the alleged harmful

feed and the death, sickness or loss of production of the

defendant’s dairy cattle. As a matter of fact, it was more

reasonable to presume that any death, sickness or loss

of production was caused from the feeding of the de-

fendant’s own feed since no contaminated feed was shown

to have been purchased from plaintiff’s plant by the de-

fendant. The counterclaim should have been dismissed on

plaintiff’s motion after the presentation of all the evi-

dence by the defendant on its counterclaim.

This Court has recognized that a directed verdict is

proper where the proof fails to disclose any controversies

as to controlling factor where there is lack of proof of

one or more material elements in a cause of action as-

serted. See Flynn v. W. P. Harlin Construction Co., 29

tah 2d 817, 509 P.2d 356 (1978).

In this case, there was no direct evidence produced

by the defendants to show that the plaintiff's dairy feed

consumed by the defendant’s cows, contained an excess

of urea, deficiency of protein, or any inconsistencies in

the amount of protein that would have caused the alleged

damage.

In addition thereto, there is no evidence in the record

to justify a conclusion that the feed caused the death,

diminished milk supply, or any other damage to the de-

v

fendant’s cattle. Circumstantial. evidence presented was

totally: lacking. : 7 !

- The appellant’s last claim of error is that prejudice

was committed in the admission of evidence. The record is:

clear that the court allowed defendant to read in material

contained in exhibits that had been previously denied ad-

mission. Rule 70 of the Utah Rules of Evidence prohibits

proof of contents of a writing, other than by the writing

itself, with few exceptions. None of said exceptions are

noted here.

The record reveals that general revenue records,

magazine articles, and other such evidence were not al-

lowed in, but were used as the basis of testimony but were

never marked as exhibits or introduced in evidence.

In the Watson Land Co. v. Rio Grande Oil Co., 61

C.A. 2d 269, 142 P.2d 950, the court therein stated:

The testimony of defendant’s president, that the

oil his company was producing had a gravity of

less than 14, and no probative value, in view of

facts that, as revealed by his subsequent answers,

he did not speak of his own knowledge, but

based his statement on the “run tickets” of the

refineries which bought the products of his wells,

and there was no showing of the basis on which

the run tickets were computed.

The conduct of the defendant, reading the exhibits

that had been excluded or refused, circumvented the very

rule of law provided in Rule 70 of the Utah Rules of Evi-

dence. For though the exhibits were refused, the unsub-

stantiated information contained in those exhibits were

vi

nevertheless presented directly to the jury for its full

consideration by the defendant’s verbatim reading of the

exhibits.

For these reasons set forth above, this Court affirms

the judgment for the plaintiff granted below in the sum

of $41,625.00 plus interest and attorney’s fees. The in-

terest and attorney’s fees to be determined below.

For the reasons stated above, this Court reverses and

dismisses the case for every other purpose except the set-

ting of attorney’s fees and determining the amount of in-

terest.

WE CONCUR:

A. H. Ellett, Chief Justice

J. Allan Crockett, Justice

Maughan and Wilkins, Justices, concur in result.

Hall, Justice, having disqualified himself, does not

participate herein.

vil

APPENDIX 8

SUPREME COURT OF UTAH

STATE OF UTAH

SALT LAKE CITY, UTAH

February 27, 1978

Office of the Clerk

THOMAS R. BLONQUIST, ESQUIRE

ATTORNEY AT LAW

METROPOLITAN LAW BLDG., 2d FLOOR

SALT LAKE CITY, UTAH 84111

Intermountain Farmers Association,

a Utah corporation,

Plaintiff and Appellant,

v. No. 14723

Jim Fitzgerald,

Defendant and Respondent.

_

This day respondent’s motion for an order disqus

J. Duffy Palmer, District Judge, and granting r

denied.

Geoffrey J. Butler, Clerk

vill

APPENDIX C

SUPREME COURT OF UTAH

STATE OF UTAH

SALT LAKE CITY, UTAH

April 7, 1978

Office of the Clerk

CALLISTER, GREENE & NEBEKER

ATTORNEYS AT LAW

800 KENNECOTT BUILDING

SALT LAKE CITY, UTAH 841383

Attention: J. Thomas Greene, Esquire

DeLyle H. Condie, Esquire

Dorothy C. Pleshe, Esquire

- e

Intermountain Farmers Association,

a Utah corporation,

Plaintiff and Appellant,

v. No. 14723

Jim Fitzgerald,

Defendant and Respondent.

This day petition for rehearing denied.

Geoffrey J. Butler, Clerk

ec: Tom R. Blonquist, Esquire