OCR Text |
Show WEDNESDAY, MARCH 1, 1972 THE DAILY EECORD PAGE FIVE i Financing Statements In The Supreme Court Of The State Of Utah ... Woodcrest Dr, Th; hhg. we have stated before, this is largely within the discretion of the and unless a clear abuse of discretion is shown trial court the refusal to submit such interrogatories is not reversible on appeal!.' 11 ... ... - 290214 15, S 8, hhg. - David Lucero SLC E, - 290257 S 8600 Randy 1720 Jr, Llewellyn, 2771 to AETNA Fin; Wm S Diesel - John Rosenbury, - 9000 AVCO 3338 Fin; hhhg. Maurine Snyder, 1993 SLC Sycamore, - 290413 to SLC Robt W, Magna to AVCO Fin; hhg. Foote, 2781 S to AVCO Fin; hhg. 290414 5 N, - Aleck Kapsimalls, W SLC 290415 - Paul Soderstrom, 862 to Natlonw Fin; hhg. SLC 1551 . to Natlonw Fin; hhg. Fin; AETNA Cummins 290417 - Mark Van Wagoner, 1261 4085 S, SLC to HH Fin; Con Gdt E 290303 Intermtn Sales, 3955 SLC to Ind Off Vlkr Tr; Inventory. -- S Redwd Bk A. H. Ellett, Justice Rd, - Victor LeChemlanat, 45 ParkHlll Dr, SLC to Mur 1st 290305 31 Th HENRIOD, Justice: (Dissenting) following reasons: 7. Morgan v. Mammoth Min. Co. , 26 Utah 174, 72 P. 688; Startin v. Madsen, 120 Utah 631, 237 P. 2d 834. 8. Berg v, Otis Elevator Company, 64 Utah 518, 231 P. 832. Con Gds. Ln; hhg. - 290310 St, SLC Cr; hhg. - glsdean Phillips, 290318 s 9 W, SL Con Gds. 527 Ln; 3938 Facer, W to Fid Ind Cr; - Jerry 290318 2 W, Mur 5296 Hudman, Robt Batson,' 649 E 3 . , to Fid Ind Cr; hhg. 290422 - Ned Shuoway, 844 S 2200 V, V Jrdn to Bene Fin; hhg. 290423 - Joe Cavalll, SLC Sunset, E 180 to Bene Fin; hhg. 290424 - Marvin Barrett, 4824 S 4520 V, Kearns to Gen Cr Co; hhg. Fire Arms. S, - . James Mower, 1225 V to Gen Cr Co; hhg. SLC 290426 - Kathryn McNeill, 3640 S 2200 V, Granger to Val Bk Tr; 290351 - Billy Mangum, 7258 1440 E, SLC to Am Nat Bk; Cmpr. Organ. - Morris Larsen, 1396 Stewart St, SLC to Val Bk Tr; Boat, Mtr, Trlr. 290428 S 290429 hhg. 290433 AED Em CU; - 290375 Tony E 17 Auto, 290374 - Dee Boren, 5119 5360 S, Kearns to Ut AED Auto, hhg. hhg. lt CU; TV, 7 E , E, Em CU; SL Postal Em - Randall Kenyon, 247 to Mat Fin; hhg. S 290434 - David McKinney, 3327 Maple Wy, 81 to Nat Fin; hhg. 290435 Tmpl, W AED to Appll. SLC SLC W Delray, 1379 Galaxle Dr, Sandy to Thomas, 2786 290430 - Eugene Riley, 4289 Falcon, to Ut - Victor 4430 8, SLC toXur 1st Th Ln; boatm Mtr. 290371 - David Landqulst, 1195 E 4045 S, SLC to Ut Ed Em CU; - Martin Crus, 248 Grant Ipson, 1104 SLC to Val Bk Tr; 290427 Taffeta Dr, 290330 - Interwest Film Corp, 650 Kennecott Bldg, SLC to Quality Accept Corp ; Eq. S, hhg. The next paragraph in the main opinion recites that Ewell discussed with the City and railroad engineers the costs of alternate methods of laying the pipe, in which the main opinion concedes, by its language, that "It is not shown that the defendants either expressly objected to or accepted that proposal. " This paragraph of the opinion seems to indicate that there was no meeting of the minds, or manifestation of mutual assent existing between the parties, and it is just as consistent that defendants objected as it is that they accepted anything, and any silence born of such lack of evidence hardly could be used to transmute an acorn into an oak tree. S to Fid Ind Cr; hhg. 290319 - Joe Ylnger, 662 th Av, SLC to Fid Ind Cr; hhg. CU; - Plano. SLC although the facts so viewed did not come close to a contract under traditional principles relating to that subject. S, SLC 290425 hhg. 290373 - Larry Clark, SLC 1429 . S to Fid Ind Cr; hhg. 290436 - Richard Hale, 4926 S 5080 V, Kearns to Fid Ind Crl hhg. Fir Arms, Autos. As 290383 - rharles Atlas Vy, Granger Olson, 3601 to AETNA Fin; hhg. 290384 . 290385 Thomas SLC SLC Peck, 2614 to AETNA - Darrol Thom, Feoney Vy, Sandy to hhg. Fin; hhg. 10278 AETNA Fin; 290387 - Darrell Rowberry, 8759 3150 S, Magna to AETNA Fin; V hhg. 290388 3500 S l 290437 - Don Hansen,' 6720 S 1620 E, SLC to Nat Fin; hhg. 290438 - Vespa Dr, do with a possible MP Th 290421 7 James 4955 S, Kearns In the next paragraph of the opinion it states that the "euphoric fallacy" of the losers (the railroads here), in stating facts favorable to their position invokes the rule that we survey the evidence in a light favorable to the verdict. There is no euphony of logic though, when the main opinion, euphoric or not, implies that because of such approach the railroads must have contracted with Ewell, and that there must have been a contract Sm to Mur 1st - 290317 The main opinion, at some length, recites the facts that the City notified the railroads that they would have to protect the underpinning of their tracks, since the City would not be responsible to Ewell for expenses incident to the presence of the tracks, and that this admonition was orally reiterated by employees of the City, not parties, but only bystanders. I agree heartily comment volunteered in the main opinion that "It is admittedly W1' somewhat strange that whatever transpired at the meeting was not reduced " It is even stranger that the only clear agreement entered into between Ewell and the railroads that could be said was binding, was that between him and the D&RG with respect to the specifications for 'jacking and tunneling, " which was in writing. The main opinion then says that "nevertheless, it is of importance in this case because it (whatever transpired at the meeting, all of which was oral) forms' the foundation for the claims upon which the plaintiff brought this suit'.' It is submitted that nothing said or done, as related above in the forepart of this paragraph, has one whit to do with any contract between Ewell and the railroads. contract between Ewell and the railroads contains the rather startling suggestion that in the conversation between the City and railroad engineers where Ewell gave some figures concerning additional costs, the fact that the railroads' engineers said nothing, knowing that Ewell wan going ahead "withphe project, " which he was bound to do anyway under its contract Pamela Davis, 137 G to Mur 1st Th Ln; hhg. 290315 - Katherine Lott, 4161 W 5780 S, Kearns to Fid Ind The only issue here is whether factually there was an enforceable oral contract between Ewell and the railroads, - the whole thrust of which is that silence here was not golden, but an acceptance of some kind of an offer made by Ewell, resulting in a contract. At best, testimony anent thereto was rather obfuscatory and not of the type required in such cases, as will be demonstrated. None who testified thereto was particeps to such an alleged contract which he simply thought to be such, save Ewell, whose testimony, so far as admissibility of evidence is concerned, was the sole basis for the jury's finding that an enforceable contract existed. 290419 - Mas collard, 3780 S 3025 W, SLC to HH Fin; Con Gds. Cr; hhg. Clayton Rost, 3844 to Town Ind Cr; hhg. McCall,. Boat, Trlr, Jewelry. U.R.C.P. S 290420 - Arlo Wlnxow, 2343 S Redwood Rd, SLC to Fid Ind Cr; SLC 104-39-- 290418 - Ricky Bronson, 4815 41900 W, Kearns to HH Fin; con Gds. r. 290308 - Thomas Kemp, 1196 Tamarack Rd, SLC to Town Ind 290309 3, Sec. U.C.A. 1943, repealed by Ch. 58, Sec. 3, S.L.U. 1951, upon adoption of new Utah Rules of Civil Procedure. 11. See Uptown Appliance & Radio Co. , Inc. v. Flint, et al. , 122 Utah 298, 249 P. 2d 826; Jensen v. Logan City, et al. , 89 Utah 347, 57 P. 2d 708. part of the main opinion having to to to Glenrose dr, Clements, 7072 Av, SLC Kent Coona, 6065 Organ. 20 E, 290412 hhg. R. L. Tuckett, Justice for the - 290411 290259 - Kenneth McPhall, 8750 S 1225 E, Sandy to AETNA Fin; - N hhg. 290402 - Kent Mortensen, 3058 S 2520 E, SLC to Cummins Diesle Em CU; Eq. hhg. 290260 - Larry Reed, 2655 W 3100 S, SLC to AETNA Fin; hhg. Em CU; 290400 - Mary Darwin Mellor, 819 Hlbicus Av, Sandy to Draper Bk Tr; hhg. Em CU; Fin; hhg. to 290399 - George Williams, 20 Greenwood Dr, Sandy to Intetaaki. Th; hhg. S Schuler The next AETNA W, Magna 290263 Rule 61, to Busklrk, 1811 to AETNA Robt Mellen, 790 6 W, Mur 290261 - Gary Fierce, 6947 S 1520 W, W Jrdn to AETNA Fin; hhg I respectfully dissent, - Redwd Rd, SLC hhg. Costs to plaintiff (respondent)., V Fin; Fire AETNA 290390 - Glen Yen 3350 S, Granger Fin; Eq. 290401 290254 - Vm Banks, 1383 Lncln Av, SLc to AETNA Fin; hhg. S 17 to V 290391 to Liberty Leas Co; 290253 - Cyrol Webb, 3100 S ' 2300 E, SLC to AETNA Fin; Appll WE CONCUR: 9. 10. 1st 290239 - Harmony Acres, 1946 W 11800 S, Riverton to Cent Eq Co; Eq. 290256 James King, 1385 SLC Arms. Dr Robt Head, 535 E 1 SLC - 290389 2280 S, Eq. There is a truism which can be safely indulged: in any lawsuit such as this of several days' duration, counsel can usually find something to complain about. Nevertheless, when the parties have had a full and fair opportunity to present their case, and the jury has rendered its verdict and the trial court has entered its judgment thereon, all presumptions favor their validity; and the burden is upon die appellant as the attacker to show some substantial basis for upsetting them. It is well established by our Rules of Procedure, 9 derived from statute, 10 and by our decisional lawll that we will not reverse because of mere error, but only if it is substantial and prejudicial in the sense that there is a reasonable likelihood that unfairness or injustice has resulted. We are not persuaded that any such circumstance exists here. Consequently there is no sufficient basis to justify disturbing the verdicts and judgment. Affirmed. 5301 to Lockhart SLC 290213 - Radkllff Bros Inc, 3935 W 4100 S, SLC to Idaho Nat Bk; Eq. There is another point of minor import, but perhaps worthy of comment, defendants contend that because Section U. C.A. 1953, vests in the Public Service Commission the regulation of grade crossings, this whole matter should have been handled by that Commission, and that consequently the district court has no jurisdiction thereof. The controversy here is not concerning the regulation of grade crossings as contemplated in the section referred to. It is a suit based upon a claim by the plaintiff for work performed for the defendants which was properly brought in the court of general jurisdiction which has authority to adjudicate such Controversies. 54-1-- - Kile Bigelow, 290212 - Eric Long, 3243 5, Granger to Fin; hhg, Cmpr. H AETNA to Allen, 24i --V Gen Cr Co; E 1300 S, hhg. 290440 - Leonard Bergwerff, 26 S 2040 V, Granger to Gen Co; hhg. 290441 - James Lavell, 60 E N, N SLC to Gen Cr Co; hhg, 33 Cr 350 Gun, - Loretta Schell, 1652 Prospect, SLC to Gen Cr Co; 290442 hhg. 290443 - Ranee Girard Av, Mg. SLC Burton, 1172 to Gen Cr Co; I 1 . , |