## Facts

- Artie Banks and Roy Shivers were students at the same Utah college.
- One night Shivers went to Banks’s dorm room on campus to cook chicken.
- Banks and Shivers exchanged disagreeable words.
- Banks testified that Shivers violently clapped his hands in front of her face and said he was going to “knock her upside the head.”
- Banks told Shivers to leave, but Shivers refused to leave until his chicken was cooked.
- Banks struck Shivers.
- Shivers claimed that after Banks hit him, he pushed her down and stood over her.
- Both Banks and Shivers sued each other for assault and battery arising out of the same confrontation.
- At trial, the court instructed the jury that an assault requires (1) an unlawful attempt and (2) a present ability to injure another.
- The jury returned a verdict of “no cause of action” on the parties’ assault and battery claims, and Banks appealed.

## Issues

1. Whether the jury’s “no cause of action” verdict on Banks’s assault and battery claims lacked evidentiary support given the conflicting testimony about what occurred.
2. Whether the trial court misstated Utah law or prejudiced Banks by instructing that assault requires an unlawful attempt coupled with a present ability to injure.

## Decision

- The Utah Supreme Court affirmed the judgment entered on the jury’s verdict of no cause of action.
- The court held that the evidence was sharply conflicting and that resolving those conflicts and judging credibility were functions of the jury, not the appellate court.
- The court held that the challenged assault instruction was consistent with Utah’s traditional formulation of assault and, in any event, Banks did not show that the instruction misled the jury or affected the outcome.

## Legal Principles

- When evidence is in conflict, the jury decides which witnesses to believe and what facts to accept; an appellate court will not reweigh the evidence if there is a reasonable basis for the verdict.
- Under Utah law, a civil assault may be described in traditional terms as an unlawful attempt, coupled with a present ability, to inflict a violent injury on another.
- A judgment will not be reversed for instructional error unless the appellant shows prejudicial error—i.e., that the instruction was likely to have misled the jury in a way that mattered to the result.

## Conclusion

Banks v. Shivers upheld a jury’s no-cause verdict stemming from a dorm-room altercation between two students, where each side claimed assault and battery. The Utah Supreme Court ruled that the jury was entitled to resolve the conflicting accounts of the incident and that the trial court’s instruction defining assault as an unlawful attempt plus present ability to injure was an acceptable statement of Utah law and not shown to be prejudicial.


Banks v. Shivers, 432 P.2d 339 (1967)