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Morgan v. Pistone - 25 Utah 2d 63, 475 P.2d 839 (Sup.Ct. 1970)

Rule:

Normally the rules themselves must govern procedure and are to be followed unless some persuasive reason to the contrary invokes the discretion of the court to extricate a person from a situation where some gross injustice or inequity would otherwise result.

Facts:

Plaintiff filed an action against defendant based on the alleged terrifying touching that was made by the latter.  The jury ruled in favor of the defendant. Plaintiff appealed.

Issue:

Does the alleged intentional touching of the defendant amount to technical battery?

Answer:

No.

Conclusion:

The court affirmed and held that even were the jury in error in its momentous conclusion, the plaintiff's urging that the trial court was off center in its instruction to the jury,  is without merit.  Such error, at best a highly debatable one, was not urged at the trial but for the first time on appeal.  The rules say repeatedly  that such exception must be asserted and made a matter of record at the trial level, failing which it is not reviewable on appeal except where unusual and compelling circumstances exist calling for correction by the exercise of sound discretion.

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