SANDERS v. TURN KEY HEALTH CLINICS

<p>Appeal from the District Court of Richland county; Allen, J.</p> <p>Action under the statute to recover damages caused by death by wrongful act. Verdict directed in favor of defendant. Plaintiff appeals.</p> <p>This is an action brought under the statute by Louis Ruehl, the father of, and administrator of the estate of, Louis Ruehl, Jr., deceased, for and on behalf of the father and mother and sisters of the deceased, to recover damages for the death of the said Louis Ruehl, Jr., alleged to have been occasioned by the defendant by carelessly and negligently leaving a telephone' post hole “without placing any guards over or above the same, and without taking any precaution of any kind to avoid.” the accident. The evidence is to the effect that on or about the 1st day of April, 1910, one L. J. Christenson was president and manager of the defendant telephone company; that about such time the company arranged to extend its line past the house of the plaintiff and to put a telephone therein; that the dwelling house of the plaintiff stood about 4 rods from the east end of the section line, on which was laid out a traveled highway; that before the holes in which the telephone poles were to be set were dug, defendant telephone company had caused the necessary poles to be hauled and placed along the route of the proposed extension, at about the places where the same were to be set, and had caused the places where it was proposed to have the holes dug marked or designated by sticks or broken lath; that on or about the 1st day of April, 1910, Christenson, on behalf of the telephone company, employed one Frank Zimmerman to dig a line of post holes along the said extension, and agreed to pay him 12-J cents for each hole; that Christenson told said Zimmerman what to do, and supplied him with the tools, and told him how to do the work; that the post holes were to be 4|- feet deep, and that this depth was directed by Christenson; that the spade used by Zimmerman was given to him

<bold>1. Civil Procedure — allowing untimely served affidavit — abuse of</bold> <bold>discretion standard</bold> <block_quote> The trial court did not abuse its discretion in a negligence and wrongful death case by allowing and considering the untimely served affidavit of plaintiff over defendants' objection in a hearing on defendants' motion to dismiss or to compel arbitration because: (1) the trial court took such other action as the ends of justice required and proceeded with the hearing; and (2) the order did not specifically state the trial court relied upon plaintiff's late filed affidavit.</block_quote> <bold>2. Arbitration and Mediation — denial of motion to compel —</bold> <bold>unconscionability</bold> <block_quote> The trial court erred in a negligence and wrongful death case by ruling the arbitration clause in a contract between defendant<page_number>Page 415</page_number> assisted living facility and plaintiff, decedent's "responsibile party" and executrix, was unconscionable based upon findings of fact wholly unsupported by any competent evidence and by denying defendants' motion to compel arbitration, because: (1) the trial court's finding that there was no independent negotiation on the terms of the contract or the arbitration agreement was not supported by any competent evidence; (2) plaintiff admitted she signed the agreement and stated she voluntarily entered into this agreement with the facility; (3) contrary to the trial court's finding, the use of a standardized form does not per se lead to unconscionability of the contract; (4) there was no evidence of lack of mutual agreement or inequality of bargaining power; (5) the agreement to arbitrate was prominently located on the last page of the contract in bold face type directly above plaintiff's signature; (6) the provisions of the agreement to arbitrate were mutual and apply equally to all parties; (7) the trial court's determination that the arbitration clause was unconscionable since

<p>Case for negligence. Plea, the general issue. Trial by jury at the' June Term, 1905, Caledonia County, Munson, J., presiding. Yerdiet and judgment for the plaintiff. The defendant excepted.</p> <p>The plaintiff is the surviving mother of Homer A. Mc-Duffee, and the administratrix of his estate. He left neither father, nor wife, nor issue. The declaration consisted of counts seeking to recover, for the benefit of said estate, the damages sustained by the intestate on account of his alleged injuries from the date of the accident to his decease; and other counts seeking to recover for plaintiff’s own benefit, as next of kin, the damages sustained by her because of the intestate’s death. Yer-diet for the plaintiff for $3,500, — $500 for the benefit of said estate, and $3,000 for the plaintiff, as next of kin. It appeared that from about March 1, 1903, till October 10, 1903, the intestate was employed as freight brakeman on “the railroad,” and that he was born June 8, 1882. It appeared that at a point north of the railroad station at Newport, Yermont, on the east side of the main line railroad track and ten or twelve feet therefrom, stood a water tank, with spout thereto attached. Plaintiff’s evidence tended to show that on Saturday, October 10, 1903, about 12:10 P. M. the intestate looking southerly, was riding on the top of a freight ear moving northerly by said.station at the speed of about two or three miles an hour; that when passing said water tank the back of his head came in contact with said water spout throwing him “forward” upon the roof of the car, his cap falling to the ground; that he arose, descended from the car, picked up his cap, remounted the car, and continued his duties as freight brakeman that afternoon on a train running from Newport to Lyndonville, where he resided; but that on that afternoon, on the trip to Lyndonville, he told a trainman that he “felt rotten,” his “head ached,” and that on his return home that afternoon he complained to plain

APPEAL from a judgment of the Superior Court of Alameda County. Richard H. Chamberlain, Judge. Reversed. Action for the wrongful death of an employee of an independent contractor hired by a city. Judgment of nonsuit reversed.