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Show MONDAY, JULY 1,1974 I NTERMOUNT A IN COMMERCIAL RECORD In The Supreme Court Of The State Off Utah (Continued from page 4) Jayne Benevldez Cameos. Plaintiff and Respondent, NO, V. divorce originally entered after the time for appeal from that decree has long ini.c cxFircu. mc aeienuant. onempis w nave mis court review tne record in the case of Benevldez v. Zimmerman, which matter appears to have been tried 1n the district court. It does not appear from the record that the file In that case was before the district court In these proceedings, and 1t has not been made a part of the record here. That matter cannot be considered by this court. 13602 FILED June 24, 1974 Peter Campos. Defendant and Appellant. Allan E. Mecham, Clerk The to costs. TUCKETT. PAGE FIVE Justice: decision of the court below Is affirmed. Respondent 1s entitled WE CONCUR: The defendant appeals from an order of the district court denying his petition for a modification of the decree of divorce entered 1n the case. The plaintiff filed-he- r complaint for a divorce on November 2, 1972, and the defendant did not answer. A hearing was had on December 8, 1972, at wMch time the defendant was represented by counsel. The court found that the plaintiff was entitled to a divorce, and further found that the custody of two children of the marriage, Christian H., two years, and Derek H., one year should be awarded to the plaintiff subject to the right of the defendant to visit the children at reasonable times. The court also awarded to the plaintiff support for the minor children. No appeal was taken from the decree entered. E. ft. v. No. 13555 and ant failure of the defendant to Include the Zlmerman record does not affect this decision.1 It would have been proper evidence 1n the divorce action, but It would not give any proof of a "change In circumstances" so as to justify a modification of the original divorce decree. CROCKETT, it is Justice, concurs 1n the concurring opinion of Mr. Justice Ellett. the case or Zimmerman established that he was the father of the Illegitimate child bom to plaintiff prior to her second marriage to T. . claimed that the defendant. No Issue was raised at the divorce trial as to legitimacy, and the court there found that defendant was the father of the child. No appeal was taken from that ruling, and the defendant cannot under the claim of a change In circumstances relltlgate the divorce case. September 28, 1972, plaintiff demanded payment of the shipping charges from Climate Control and it has now initiated these proceedings against Climate Control on the theory that it is liable for the shipping charges as consignee. After receipt of the shipments Climate Control paid American Standard for the equipment, including shipping charges. Plaintiff delivered the equipment to Climate Control without any reservation and without demanding payment of the freight charges. It is the plaintiffs contention here that Section 223 of the Motor Carrier Act, 49 U. S. C. , creates an absolute liability upon Climate Control as consignee to pay the freight charges. Pertinent part of that section is as E. L. Murphy Trucking Company, Plaintiff and Appellant, American Standard, Inc. (Concurring specially) I concur, but with the observation that the still It Justice: ELLETT. a .v Defendant and Respondent, Chief Justice F. Henri Henri od, Justice It , Jr., , On March 22, 1973, the defendant petitioned the court that the plaintiff be deprived of the custody of the minor children, claiming that the plaintiff was emotionally unstable, and that would be 1n the best Interests of the children If custody were awarded to him. After a hearing the court denied the defendant's petition. On October 3, 1973, the defendant filed-- petition for modification of the decree wherein he alleged that the child Christian was the son of another man and that he, the defendant, should be relieved of the obligation to further support the child.' After a hearing, the court denied defendant's petition for modification. While there was some evidence to support the defendant's contention that the child Christian was not his natural child, the record does not support such a change of circumstances which would entitle the defendant to have the original decree modified. It should be noted that the defendant raised no Issue of paternity at the time these proceedings were Initiated, nor did the defendant make any such contention when he sought to have the decree modified so as to award to him the custody of Christian as well as the other child. appears to us that the defendant 1s attempting 1n these proceedings for a modification to have this court review the decree of Climate Control, Inc. CaUlster, FILED June 24, 1974 follows: , Allan E. Mecham, ent. lerk common carrier by motor vehicle shall deliver or relinquish possession at destination of any freight tranaported by it in interstate or foreign commerce until all tariff ratea and chargea thereon have been paid, except under such rules and regulationa aa the Commission may from time to time preacribe to govern the settlement of all such ratea and chargea, including, rulea and regulationa for weekly or monthly aettlement, and to prevent, unjust discrimination or undue preference or prejudice: No TUCKETT, Justice: This ia an action brought by the plaintiff, E L. Murphy Trucking Company, an interstate motor carrier to recover freight charges for the equipment. In the transportation of certain shipments of court below cross-motiofor summary judgment were made and the court granted the motion of the defendant Climate Control and the motion of American Standard and denied the motion of the plaintiff. Plaintiff is here seeking a reversal. ing ns It appears that the intent of congress in adopting the section was to curb preferential discrimination among shippers by interstate motor carriers. In 1971. Climate Control purchased from American Standard a number of large units. The purchase contract provided that American Standard would pay the freight charges for shipment of the units from Carteret, New Jersey, to Salt Lake City, Utah. American Standard arranged with a New Jersey firm called B b M Trading Company .to have the equipment shipped to Salt Lake. BbM Trading in turn arranged with East Coast Drayage Company, also a New Jersey company, to ship the units. American Standard paid B b M Trading Company the amount of the shipping charges. The East Coast Drayage Company made arrangements with the plaintiff, E. L. Murphy Trucking Company, to transport the equipment. The plaintiff prepared four bills of lading, one for each of the four truck loads. One of the bills of lading contained the notation that the freight charges were prepaid, one of the bills indicated the charges were to be prepaid and the other two bills omitted any notation as to freight charges. Each of the four bills of lading stated that East Coast Drayage Company was to be billed. The four truck loads of equipment arrived at Salt Lake City between November 16 and November 19, 1971, and were delivered to Climate Control. At the time of delivery to Climate Control the plaintiff made no demand upon Climate Control or American Standard for payment of the shipping charges.' The plaintiff billed Eaat Coaat Drayage Company for the a hipping charges on November 17 and 18, 1971, and for aeveral montha thereafter attempts were made by the plaintiff to collect from Eaat Coaat Drayage. After a period of some four months the plaintiff discovered that East Coast -, Drayage Company was in financial difficulties. On July 11, 1972, the plaintiff made demand upon American Standard for payment of the charges. In Parley Mortenson, et al. , Plaintiffs and Respondents, v. Professional United Realty, et al. , Defendants and Appellants. This is not a discrimination case as dealt with in Pittsburgh, Cincinnati, Chicago and Saint Louis Railway Company v. Fink where the carrier undercharged the consignee of a shipment of goods and subsequently sued him for the unpaid balance of the full tariff rate. The record here discloses that American Standard paid in full the shipping charges to B fc M Trading Company which arranged with the East Coast Drayage Company to ship the equipment. It appears that the action of the plaintiff in delivering the goods upon bills of lading which', indicated that East Coast Drayage was to be billed for the shipping charges and' also one of the bills being marked prepaid and another to be prepaid and the delivery being made without any demand for, payment of the freight deprived Climate Control from a means of protecting itself from being required to pay twice. The record supports the conclusion that had not Climate Control relied upon what in effect amounts to a representation that shipping chargea had been prepaid it could have refuaed to pay American Standard without further aaeurancea shipping chargea were in fact prepaid in accordance with the terms of the purchaae contract between Climate Control and American Standard. 2 We conclude that the trial court waa correct in it a entering judgment in and that decision ia affirmed. Respondof favor the defendant and ' ents are entitled to costs. 250 U.S. 577 , 40 S.Ct. 27, 63 L. Ed. 1151. Missouri Pacific R.R. Co. v. National Milling Co. solidated Freightways Corp. v. Eddy (Ore. 1973), 513 Freightways Corp. v. Admiral Corp. , 442 F. 2d 56. 1. 2. 409 F. 2d 882; ConP. 2d 1161; Consolidated , ua to examine this case in a light favorable to the judgment if reasonably they support it by competent, admissible and believable evidence. We think they do. No. 13476 FILED June 27, 1974 Thia caae involve a the usual earnest money agreement vehicle that ''wheels and deals itself into a quagmire of contradictions, accompanied by different factual veraiona anent the "ready, able and willing" syndrome. The. contract paaaed, the title, mineral ' time for the effectiveness of hoped-f- or rights, etc. were bones of contention, and the record doea not aeem to reflect any firm understanding or manifestation of mutual assent. The matter dragged Defendant received along, punctuated by negotiation, offer and counter-offe- r. 100 to apply on its commission, if it was entitled theretand pocketed about $2, o,- - about which no one seems to complain, including this court. T Allan E. Mecham, Clerk HENRIOD, Justice: a Appeal from the diamiaaal of a counterclaim for real eatate coma. to mie a ion. Affirmed with coeta plaintiff Thia case waa before us on appeal in 1968 where plaintiffs sought and recovered a declaratory judgment for breach of contract in the trial court. We affirmed that judgment in Case No. 11343, 23 Utah 2d 54, 456 P. 2d 181, 1969, but returned the case for trial aa to the counterclaim. The trial court rendered judgment on the counterclaim in favor of defendants, but after remotion for a new trial. After the trial, examining the case, granted a timely the counterclaim waa diamiaaed, from which action the preaent appeal sprang. The decision was one based almost entirely on factual matters, which impels . Having decided as the trial court did, and having decided as we have in affirming that decision, we conclude that the points on appeal that 1) there was a willing; buyer, 2) that the buyer, not the seller, was not responsible for any commission and that 3) defendants had an interest in a $3, 000 down payment are without merit, - and particularly that 3) flies in the teeth of our decision in the earlier Mortenson case cited above. Any further protraction by recital of more controverted facts would seem to serve no useful purpose. mmm ' (Continued on page 61 |