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Show Page Three FRIDAY, APRIL 30, 1976 THE SALT LAKE TIMES Utah Supreme Court Opinions 200 Years Ago This Week By Congressman Allan T. Howe On May 1, 1776, General John Thomas took over command of American forces at Quebec, Canada, from General David Wooster. Wooster had only been in charge of the troops at Quebec for a month, David Yocum Bids For Office (continued from page 1) efficiency in the fight against a rising statewide dme rate. UI believe that the attorneys for the State of Utah must be full time public advocates, Mr. Yocom said, and I intend to make that the rule in that office if I am elected." In July of 1975, he was appointed the Project Director for the Career Criminal Program in the Salt Lake County Attorneys Office. Mr. Yocom received his Bachelors Degree from the University of Utah in 1961 and his law degree from that school in 1965. He was a practicing attorney in Salt Lake City prior to his appointment as an Assistant District Attorney for the Third Judicial District in 1969. . but had proved himself so inept during that time that it was deemed essential to replace him. The French, anxious to do what they could to hurt their arch rivals the British, began clandestine support of the rebel colonists. Secret agent Pierre de Beaumarchais set up a phony company, Roderique Hortalez et Cie., and through it the French government supplied the Americans with a million livres worth of munitions, beginning May 2. On May 3, a British expedition headed by General Clinton was joined by Admiral Sir Peter Parker and General Charles Cornwallis and reinforcements from Britain. Clin-- , ton had been waiting with his expedition off North Carolina for Parker and Cornwallis and the fresh troops brought by Cornwallis. With their arrival, Clinton decided to attack Charleston, South Caro- Hinton Seeks State Office (continued from page 1) for the nation in the Commercial Code field. We are also now nearing completion on a similar system for our Corporation Department. I have been extensively involved with these developments. Mr. Hinton also said that if elected, he would use his position as a member of the Board of Examiners to scrutinize carefully all State expenditures and to eliminate waste where ever possible so that available funds may be used for the betterment of all taxpayers. Mr. Hinton believes it. is possible to keep a balanced budget without increasing taxes. Mr. Hinton was a practicing attorney at law in Lehi City for nearly twenty years before being appointed Deputy to the State's second highest officer. lina. King George III appointed AdLord Richard Howe and General Sir William Howe as peace commissioners on May 3. The Howe brothers were the navy and army commanders of the British expeditionary forces gathering in England and Halifax, Nova Scotia. Rhode Island declared its independence on May 4. The one-tim- e colony became the State of Rhode Island and Providence Plantations by an act of the General Assembly. miral provides fur the time for filing notice: Section IN THE SUPREME COURT OF THE STATE OF UTAH .... -- A claim against h political subdivision shall be forever barred unless notice thereof is filed within ninety dsys after the cause of action arises; provided, howevrr. that any claim filed against a city or incorporated town under section shall he governed by the provisions of section ouOuu----- Kcnncth V, McKay and Buy McKay, husband and wife, Plaintiffs and Appellants , 14149 FILED v. March 15, Salt Lake City, a municipal corporation, Defendant and Respondent. CROCKETT, Section 1976 Allan E. Mecham, Justice; The work in connection with the widening, lowering and restructuring South Street was commenced in August of 1972 and continued as weather permitted through the winter months, at least until during March of 1973. There were discussions between plaintiffs and officials of the City Street Department as to the damages resulting to their property and what measures would be taken to restore it to a suitable condition. The City says that in February the street commissioner gave the plaintiffs what it asserts was in the nature of an ultimatum that they could take $2,400 and make the necessary restoration, or that the City would spend that amount for that purpose; and the City argues that this point is when the time in which the plaintiffs had to file a claim commenced to run. First The plaintiffs' version, supported by averments in their affidavits, is that the commissioner's statement to them was but a proposal; and that the City agreed that the plaintiffs could have a reasonable time to obtain expert advice, study the proposal and respond thereto. They also assert thatobthey proceeded with reasonable dispatch to investigate and were unable to tain a contractor who would construct a retaining wall and repair the damage for the amount indicated, which fact they communicated to the City; and that it was not until the middle of the summer that they were finally made aware that the City would not satisfy their demands with respect to such restoration: and that they then caused notice of their claim to be served upon the City on September 28, 1973. Essential to an analysis of the problem here involved is the fact that plaintiffs' causes of action have two aspects: they allege that the City caused fcrnagc in and upon the plaintiffs' property; and ihey also allege that such damages resulted from defective conditions which were created and so left without proper restoration in the street adjarrnt to their property. The statutes applicable to the :ssje of the defrndainf City1 and the timeliness of the filing notice uf claim herein are: Section juries caused by any -8 . . . street. . . . " " to which the just quoted section refers, provides: F.vsry claim against a city or Incorporated town for damages or injury, alleged to have been caused by the defective, unsafe, dangerous or obstructed condition of any street, alley, crosswalk, sidewalk, culvert or bridge of such city or town, or from the negligence of the city or town authorities in respect to any such street, allay, crosswalk, sidewalk, culvert or bridge, shall within aix months after the happening of such injuryir damage be preaented to the board of commissioners or city council of such city, or board of trustees of such town, in writing, All emphasis aded. Clerk Plaintiffs McKay sued for damages caused the lawn, shrubs and sprinkling system of their home on the southwest corner of University Avenue and First South when the defendant City widened and lowered the street grade. On the basis of the pleadings, affidavits, and exhibits the district court granted defendant's motion for dismissal on the ground that the plaintiffs had failed to give the notice within 90 days of the injury, required by Section U. C. A. 1953. of the Governmental Immunity Act. Plaintiffs appeal. of 1953. Utah Code Annotated, No. .... The trial court appeara to have assumed that the plaintiffs1 claim should be barred because it waa not filed within 90 days as stated in the first quoted above. But by a liberal construction of provision of Section the pleadings, to which the plaintiffs are entitled in Ike face of a motion to dismiss, it will be seen that because of the allegation of damage due to a defective condition in the street, at least one aapeet of plaintiffs' claim would come under which the second provision of the just quoted statute provides Section -8 7. shall be governed by the provisions of Section As shown by the emphasised language quoted above, that section provides that for claims for damages allegtd to have been caused by any defective condition of any street, notice shall be given within six months after the happening. Consistent with what wa have said herein, it appears that thare ia dispute between the parties as to whether the work had beta completed; and whethar tha City would do more work on the project, or leave it to the plaintiffs to have it doe. We therefore do not see any basis to justify an 'assumption of fact that tha plaintiffs' grievance had finally ripened into a claim which could and should have been filed in February, or even in March, and thus have started the time allowed for filing it to run against them; nor for the further assumption that tha for damages caused by a defect claim was not ons arising out of Section in the street for which plaintiffs would have been allowed eix months to file their claim. -8 Coneequantly, we agree with the plaintiffs' contsntioa that thars is disputa as to whether they gave the City written notice of their claim within the time required and that the trial court erred in dismissing their complaint on that ground. Xt is therefors necsssary that that ruling ba vaeatsd and that this csss be remanded for further proceedings. No costs awarded. WE CONCUR: R. L. Tucket! iL. illy provides for the waiver of sovereign immunity for in. . defective, unsafe, or dangerous condition of any 1. See Section U.C. A. 1953. concerning the city's liability for damages caused by the changing of grade in s street. Justi Richard J, Maughan, - Thompson v. Ford Motpr Co., 123 Utah 289, 259 P. 2d 297. 2- . , I& Utah 2d 30, 395 , Mo. 14149 -- 2- volunteer feR THE Continental armv wepe from the States of and Pennsylvania, marylaupNOPTH MARCHED VIRGINIA TO JOIN &EM-- WASHINGTON -OF BOSTON THE AT tfbAAV? AEMV id mape up Of MEN A VIP WOMEN FROM aup te eproeV, every stateSAME AS THE BUT ITIS THE CONTINENTAL APMV IN AT LEAST ONE RESPECT. ZlFlEMEAlj AU- - THOSE SERVING IN TODAY'S ARMY ARE VOLUNTEERS THE AeMYVavMTKP THEN; VOLUNTEER NOW Salt Lake City 524-402- Brought to you by the Union Pacific Railroad People 6 IrTtwlBa JOIN THE PEOPLE WHO JOIN THF. ARMY. Justice P.2d 62; Morris v, Farnsworth, |