Clampitt v. Kerr

Utah Supreme Court
Clampitt v. Kerr, 1 Utah 246 (Utah 1875)
Boremak, Emerson, Lowe

Clampitt v. Kerr

Opinion of the Court

Emerson, J.,

delivered the opinion of the Court:

The Appellants have abandoned their points made upon the exclusion of certain testimony, and the remaining assignments of error are to portions of the charge of the Court as given, and to refusals to charge

The fourth and eighth requests of the Respondents may be considered together. They are correct as abstract principles of law, and although it is difficult to see how they could be made applicable to the case, yet it is not perceived in what manner the jury could have been misled by them We do not believe the jury could have inferred from the fourth request as given, that they were left to construe the contract.

The same may be said of the Respondents’ ninth refusal. It was a mere statement of what was in the contract itself, and was no more favorable to the Respondents than to the Appellants. It applied to the one party as well as the other. The Court may properly refuse to give instructions made up of abstract principles of law, having no particular reference to the evidence before the jury, yet if such instructions are given in general terms, it will be presumed that the jury properly applied them to the case before them. We see no error in the instructions given that would warrant us in reversing the judgment. Nor do we see any error in the refusals to charge as requested by the Appellants. These propositions were substantially covered by, and embraced in, their otherrequests, as actually given by the Court. We have regarded the thirteenth request of the Appellants *249as given so far, as it was correct and applicable to the case. As a whole the Appellants were not entitled to it. The Court therefore properly refused it in that form. The record shows that it was explained, but does not show what that explanation was. In the absence of this showing it must be presumed that the Court eliminated whatever was erroneous, and correctly applied the law to the case.

Upon the whole record, talcing the charge as actually given, we think the "issues raised between the parties were fairly left to the jury,-and that this verdict ought not to be disturbed.

The judgment is affirmed, with costs.

Lowe, C. J., and Boremak, J., concurring.

Reference

Full Case Name
JOHN W. CLAMPITT v. JOHN W. KERR
Status
Published