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Show THE SALT LAKE TIMES FRIDAY, APRIL 16, 1976 200 Years Ago This Week Utah Supreme Court Opinion By Congressman Allan T. Howe An important step was taken ington both expected that New toward independence on April 12, York would be the next British 1776, when the North Carolina target. Provincial Congress as Halifax Two new warships were added to passed the Halifax Resolves," in- the American navy (a not structing the North Carolina dele- inconsiderable addition considering gates to the Continental Congress the tiny size of the, fledgling to stand for independence. North American naval force) on April Carolina was the first colony to 15, 1776, when the. USS Warren officially take a stand in favor of and the USS Providence were launched at Providence, Rhode Isindependence from Great Britain. The action taken by North Caroland. lina was followed later in 1776 by Also on April 15, the Continental important steps toward independCongress moved toward national ence taken by two other colonies. independence when it passed a On May 4, Rhode Islands legislaresolution recommending that all ture formally declared that state colonies reject all royal authority independent from Great Britain. and form independent governments. (One colony, North CaroAnd, later, the Virginia Convention instructed its delegates to the lina, anticipated that Congressional Continental Convention in Philaresolution by three days when it delphia to propose independence passed the "Halifax Resolves, callfor all the colonies and to support ing on its delegates to the Congress whatever actions and foreign al- to stand for independence, on April liances thought necessary, and to 12. North' Carolina was the first support a Confederation of the colony to take this bold action, Colonies. which was undoubtedly influential On April 13, General Washington in persuading the members of the and the main American army ar- Continental Congress to take an rived in New York from Cam- official stand against royal authorbridge, Massachusetts. It was ity.) known that after Washington and The first capture in actual battle forced the British Commander of a British warship by a regularly Howe and his forces to flee the commissioned American navy ship Boston area, they had evacuated to took place on April 17. Navy Halifax, Nova Scotia, where they Captain John Barry, commanding were to be reinforced and that the sloop of war USS Lexington another expedition was at sea from captured the HMS Edward. England. The Congress and Wash . Page Three I liv any wnnvsaea which they choas iiiry had ihr prrrngalivr In In IhIiiCc and whrru Ihrrr is cnnipclrnl I'vidrner In support Ihrir verdict (ae 1 I re ia in line iao( we are mil in aulislilutr our belief for Iheira. l Till: SUPREME rorui mmm Kray V - CJK fKjItOO- THE - MATE defendant recugmara ihe rule lhai appellate cnuris du nut ravarae on facta fairly found by Ihe jury: but it claims that Ihr trial court should have nivrn its requested instructions In the rffrrl that if it found that the use nf a heavy drain valve un a swage nipple wan an aerrpted engineering practice, then an engineer who followed that procedure ruuld nut ba held lo bo I OF UTAH law No. I40H9 and Hill F.amp, Maintilfa and Raapondania, F I I. F Marrh v, van Frank 6 Associates, Inc., and Roper M. van Frank. Defendant, and Appallnnin. negligent. D 3, 1976 Clark Allan E. Mncham, in lha dial riel court ranking lo reacind and nullify a contract entered into with the defendanla wherein lha detendanie undertook to render architectural nervicea and to provida plana and aperificaliona for a duplex the plainttffa contemplated building. Defendant hnva hind a notice of lien pureuant to tht provieiona of Section U.C.A. 1953. In Ihcaa proceeding the defondanlecouiiterclaimad necking to foreclose that lien and lacking damage for allagad libel. Thie appeal ie from a judgment in favor of plaintiff. Tla plainnffn initialed theae proreedinpa Prior to filing their complaint lha plaintiff had tendered lo counaol for the defendant the earn of $626.57 and demanded that tha liaaba raleaaed. la connactioa with the demand and tender tha plaintiff returned what they deecnbed ae "miafll" plane and demanded that tha defendant furnieh plana prior to the plaintiffa making application for I building permit. Tht plaintiff! aatk to racovar the penalty provided for by Section U.C.A. 1953, for failure of tha defendant to rolcae Ihoir claim of lien within tan day after raquait and tender 6f tha amount dua. That (action provide that a lianor ahall forfait and pay to lha peraon making tha raquait tha penalty abova mentioned. While the amount tendered by the plaintiff! wae in care of that Ultrmatdy found dua lo tha defandant. it ie noted that tha tender wii not unconditional and that the plaintiffa xpectcd further performance by At the time the plaintiff requested release of the lien there the defendant was a dispute as to the amount due. Prior decisions of thio court have laid down tha rula that aa a condition proetdoni to one'a entitlement of tha penally Thi ho ia obliged to moot tha condition of tha atatuto with particularity. court ha alao held that a lander, to be good, must bo free from conditions tenderer has no right to Inaiat upon. Tha fncta in thie case Indicate thero was a genuine dispute as to the amount oi lha obligation duo as wall aa whethar tha fitnasa oi th piano and specification supplied by tha defendants ware adequate for the purpose Intended. We arc of tha opinion that the portion of lha judgment which awards tha plaintiffs tha statutory ponalty should b and tha eama it ordered deleted. Other portion! of the judgment appealed from appear to be proper and correct and tha same ara affirmed. satis-facto- ry A. H. Ellett, Justice I Utah has hold that prajudgmant interest ia allowable for th destruction to personal property. Th landmark case is that of Fell v. Union In that caaa th dofondant delayed a shipment of ahacp for Pacilic Ry. Co 32 hour without food or inter. Many of tha animate died and all euffored a great loss in weight. Thie court said: or damage . . . Tlht rula has bacoma ganaral, aad that tha allowance of internal in cases of torta to property ia ia harmony with tha trend of modern authority. It la quite true that there are cases against thie rule, but they are not, as we conceive, baaed on either good reason or In th clan of caeca, therefore, where good logic. the damage is complete, and th amount of the loss is fixed as af a particular time, thsrc ia there caa b reason why interest should b withhold merely because the damages are unliquidated. There ara certain cease ... 11950 No. of unliquidated damages where interest cannot bo allowed. of death by wrongful In all poroonal injury caaes. cat :n act, libel, slander, false imprisonment, malicious prosecution, assault and battary, and all casta where th damages ara incomplete and ara peculiarly within Ihe province of th jury to aooeei at tha time of tha trial, But thin is so because the no interest is permissible. damages are continuing and may avan roach beyond the time of trial. an annntalion in 96 that tor injury to, or detention, teal, or dsatruction of, property, interest may be recovered either eo nomine nn the d.ijragve found, or ao a part of th damages. Charlton v. Hacketl, II Utah id 389, 360 2d 133, 369 P.2d 290. 2. 32 Utah 101. 88P.iiaU(P907). Richard J. Maughan, Jualica Crockett. Juatice prafardto While the rule Is sometimes stated that inicrest cannot be recovered on unliquidntod damages, tha tendency of th more modern caeca is to allow interest whenever jueticc and equity require ita allowance, and, although there ie a ronilici in the decisions, thef rule may ba stated generally T 1. Steverta v. White, 2 Utah 2d 351, 273 P.2d 974. Hardware Co., 14 Utah 2d 278; 3(2 P, 2d 2. Emerson v. Central Lumber 655; Wagstaff v. Romeo, Inc., 540 P. 24 931 (Utah). enable thousands of men and women to qualify for jobs that will be available." The tew is set forth generally in the A.L R. at page II a follow : WE CONCUR: Chief Justice there Tha respondent cross-appeal- s because of the refusal of tht trial court lo allow interaal on th amount awarded prior lo th date of judgment, The trial court spccllically instructed lha jury not to include anything by way of in the interest verdict. Tim matter io remanded to tht court bolow with diractiono to modify above indicated. No cost awarded. Education Assistance Bill is approved by Congress. He said the need for skilled workers in coal mining is critical. W think the verdict rendered by Ihe jury waa justified and lhai wee no reversible error in the instructions given. ill judKneni as J. Allan He said the National Academy of Welfare Committee this week ap- Engineering estimates that the proved and reported to the full U.S. will need an additional 125,000 Senate a bill introduced by Senator skilled workers by 1985 as the nation increases its production, of Frank E. Moss, to assist communto more than 1 billion tons. coal ity colleges in training skilled coal This bill will mean a great deal mine workers. Under the bill the Office of to Utah," Moss said. With our Education would provide direct great reserves of coal, Utah will imgrants to community colleges to surely play an increasingly training electricians, machine oper- portant role in meeting the nations ators, mechanics, mine safety su- future energy needs. But just as pervisors, foremen and other important will be the training of skilled coal workers. young Utahns in todays modern Moss said the College of Eastern mining technology. This bill will Utah in Price is one school that insure safe, efficient and expanded would benefit from the bill when it production of coal; it also will ' The issue to be decided by the jury wae not whether it wee improper engineering procedure to inatall heavy drain valves, but rather whether it waa negligence to dn so without oupporl. 1 Moss Introduces Mine Workers The Senate Labor and Public 1 he inslrurtinn waa properly refused for ihe reason that the evidence before ilia court and jury wae that such a connection waa acceptable engineering practice when Ihe heavy valve wa braced ur nlherwiee supported and thero wee no tretiniaiiy that a heavy drain valve unsupported on a swage nipple wae acrrpteble iu the engineering profession. Uthvr inai ructions given by Ihe court to Ihe jury empty set forth the tew involved in Ihe case. Tl.TKf.TT. Jualica: F. Henri Henriod, lie lairs P.2d 176; Da Vae v. Noble, 13 Utah -- 2- the supreme court or the state or utah Uint Pipeline Corporation, a Utah corporation, Plaintiff and Rcepondant, v. This caaa ha been followed la Utah many times: Railroad v. Board of Education, 35 Utah 13, 99 P.263 (1909), was a condemnation case. Interest was allowed from data of taking. In Wheatley v. Oregon Short Lino R. Co.. 49 Utah 105, 162 P.S6 (1916), four head of cattle were killed. The action wae in tha juotica of tha peace court for the value of tha cattlo plus interest from datt of killing. Th total amount aacoadtd tha jurisdiction of the Justice court. Plaintiff argued that intoroat could not b recovered before judgment. This court hold to tha contrary and held that tha demand of th complaint wai. beyond th jurisdiction of tha juotic court. St. Joioph Stockyards Co. v: Love, 57 Utah 450, 195 P. 305 (1921), wa aa action for wrongful attachment. Prejudgment internet wai allowed. Gilteapi v. Blood, 01 Utah 306, IT P. 2d 022 (1932), waa an action to racovar two bond! of tha valaa thereof. It wa hold that interoot began to run from th time of tha fraudulent taking of the bond a. Thera can ba no question about tha propriety of allowing intoroat for th daotruction of personal property prior to Judgment whara value can ba measured by facta and figure. In the instant matter th coot of rebuilding the compressor otag ana eubject to computation. Therefor it wae error for theicauttno fail to award interest from tha tima of destruction. The judgment ie affirmed except aa to tha matter of interest and ia remanded with directions to increase the amount of Judgment by the amount of interest accrued from data of damage to data of judgment calculated at the legal rat. Costs are awarded to respondent. WE CONCUR: 13950 While Superior Company, a corporation, Hon R. White Company, a corporation, and D. E, Caaada, dba D. E. Casada MarchS. 1976 Construction Company. Defendants and Appellant. Allan E. Mccham, Clerk ELLETT. No. FILED Juotic: Tht dofondant Kta R. Whit Company appeals to this court from a verdict and judgment in favor of th plaintiff. Tha plaintiff counterclaims for prejudgment interest on the award which tha trial court denied. Th appellant ia a profaeilonal engineering firm and wae retained by the plaintiff to provida for tha installation of an angina driven lingla-atag- a compressor in connection with a gaa well. Tha compraooor was a reciprocating piaton angina enclosed in a cylinder and fooled by natural gao. The compressor is noadod in order to rates tha pressure of tha gas from the wall sufficiently high to permit It to enter the pipeline of the purchaser thereof. Ahead of the comprcaeor ia a verticla metal tank need lo collect and separata moieturo from the natural gas. It ie necessary to drain water from thio metal tank occasionally and tha appellant designated a large valve weighing approximately 12 pounds to he attached to tha bottom of tha tank. Tha tank had a female threaded opening white tha valve had a female threaded spaaing of a different diameter. It wai therefore nacaaaary to attach tha valve to tha tank by moans of awaga nipple of oom two iachai in length. Subsequently it waa necessary to convert tha compressor to a two operation In order to increase tha pressure due to a foiling of proa-aur- a from tha gao well. A now valva was installed, but tha dafondant'o witnaaa teat Iliad that there was no diffaranca in tha operation or aafaty of the now valva over tha old on, b, too, waa ao heavy so th first one and woo attached by a wage nipple. J. Allan Crockotl, Juotica -- itmge R. SERV1N6 THE UNITED TASTES OF AMERICA FOR 181 YEARS FROM 179570 L. Tackett, Juotic TO Richard J. Maughan. TOOM- - HENRIOD, Chtef Juotic, Juetica After seven days opa ration a fir occurred which completely destroyed the compressor station. dooo not participate harain. StX 61NEAAV0NE Of THE BEAM FAMILY NAVE SliNMAKtNi THE Tha plaintiff auad claiming that the attaching of an unsupported heavy valve to th tank by means of th swag nipple waa negligent and that tha vibrae tion! act up by tha operation caused lha threads of tha awaga nippla to fail and lhai escaping natural gaa under pressure caused an explosion and fir which completely daatroyad th compressor stage. HMLDi ftMOrSOUKSM. The appellant contends that thart waa no metal fotigu. but that an occurred which caused th threads of the awagt valve to rupturo. -- 3- No. 13950 There was conflicting evidence given as to whothcr the designating of n heavy valve on a two tech stem waa according to good gnginoering practice. Th defendant's witnesses testified that it wae good engineering practice to designate a heavy valva. white th witnesses for tho plaintiff testified to the contrary unless tha heavy valve had some sort oi support or bracing attached to it Zion Outdoor Theater In Progress I STRAIGHT IOURBOM WHISKIY IbWWWNk jUDiKwuiQn) Bicentennial F LIMITED EDITION 100 MONTH OU BEAM BOURBON SERIES-O- for OHM, ciAMie saturmv mnms CwKt. Harm S BOTIlEt OF BEAM BONBON. IT) OWN Kf NTENNlAi CARTON EACH w immmibw. f 11 1 jaat RENT UCKY SI RAIGHT B0URRUN WHISKIE S. 80 PROOF DISTILLED AND BOTTLED BY THT JAMISB BEAM DISTILLING CO CLERMONT. BLAM. KY sponsoring a series of concerts in late May and early June, including an outdoor sunset concert on the edge of colorful Zion National Park. Utah Bicentennial funds will help provide an amphitheatre at Spring-dal- e for the Zion concert. Dr. Chairman Obert C. Tanner outlined Tanner said the amphitheatre conof of a series joint developments is on schedule and in fact, struction concerts with the Mormon Taberis it nacle Choir and Utah Symphony moving alorig very well! He during a meeting of business and continued, These joint concerts with the Utah Symphony and media leader in Salt Lake City. The Bicentennial Commission is Mormon Tabernacle Choir will be Officials of the Utah american Revolution Bicentennial Commission (UARBC) said this week progress on an outdoor Bicentennial amphitheatre near Zion National Park is going very well." UARBC the highlight of Uah's Bicentennial celebration since these two world-acclaime- d groups have never before performed together." Springdale Mayor Howard Smith says most of the cement has been poured for the seating at the Springdale amphitheatre and the footings have been installed for the state. Water is hooked up, the power line is in and we're on the final phase of the road, the Mayor said. |