*1 Implied tution and Contracts 16§
theAs district court noted in denying re enrichment,
covery unjust this is a case equipment premises
where was installed on request permission.
without the owner’s denied generally recovery
Courts
unjust property enrichment to the owner in Fixtures circumstance. Commercial & Adams, Furnishings, supra; Inc. v. Meehan Township,
v. Cheltenham 410 Pa.
A.2d 593 of Nova Bank Scotia v.
Bloch, (D.V.I. 1361-62 F.Supp.
1982). agree. We
We emphasize this is not a case unjust
where the claim enrichment is based provision property services in
circumstances of such as exigency, describ-
ined Restatement of Restitution 113-17 §§
(1937). Nor is where proper- this a case
ty owner has requested installation or
services or acquiesced has their benefits
in such a trier of way that fact can
appropriately find an contract
pay their Compare reasonable value. Rapp Telephone
v. Mountain Telegraph States Co., Utah, Clothier,
McCollum v. 121 Utah (1952); Wooldridge Wareing, respects. is affirmed
No costs awarded.
HALL, C.J., STEWART, HOWE and
DURHAM, JJ., concur.
David L. GROEN and Mountain
Helicopters, Inc., Plaintiffs and
Appellants,
TRI-O-INC., Respondent. Defendant
No. 17684.
Supreme Court Utah.
June 1983. *2 It was line in Colorado. string power the line heli- string part of
necessary to “flying wire.” called copter, operation contracted Tri-0 Moun- (Rocky Inc. Helicopters, Mountain necessary tain), perform order, *3 of the work the terms work. Under helicopter a supply to Mountain was оther supply to and Tri-0 was pilot, and the wire. necessary string to equipment pilots, two of its sent Rocky Mountain Candlish, job to and Joe plaintiff Groen Groen, an the contract. perform site to Rocky Mountain’s pilot, was experienced He was to teach Candlish safety officer. fly how to wire. helicopter fly a requires wire”
“Flying The alongside electrical towers. sideways length of lead threads a 100-foot helicopter along a steel cable rope connected to “travellers,” it into by laying towers (Later, the tower arms. hang from and pull larger a cable cable will be used line permanent heavy conductor finally travellers, line is where the through the tower.) on the affixed to the insulators flying for precise technique There is no and key precision The elements are wire. a constant the cable at ability pull varies helicopter’s speed The speed. rate of factors, including many depending on McDonald, M. Dalli- M. Robert Suzanne conditions, terrain, and the dis- weather more, City, plaintiffs Lake Salt towers. tance between appellants. Tri-O, Ken- through superintendent, its Williams, David G. Salt Clegg, H. James polypropylene a Clinger, chose ½-inch neth respondent. City, Lake for defendant (“PD-10”) as the lead twisted OAKS, Justice: the wire. Groen with which using “Sampson” previously, flown wire personal injury This an action for (¾ inch) in diameter larger which was sustained in a property (braided construction and of different on a Judgment was entered crash. arrived twisted). When Groen rather than appeal, the defendant. On verdict site, Sampson rope. job requested of no (1) the verdict plaintiffs contend none in stock him that he had Clinger told the evi- supported by was not negligence a runner supply it and sent agreed but he dence, of miscon- (2) guilty it. to Denver for duct, district court erred refusing to instruct meantime, Clinger asked Groen In the of fitness. express warranties already a bind.” Tri-0 had get him “out of oper- perform flying permit obtained a electri- (Tri-O) is an Defendant Tri-O-Inc. arranged and had accident, freeway across the ation cal At the time of the contractor. traffic. Patrol to control Highway with the electrical towers it had a contract to erect up Tri-O needed Groen to wire to and was entered in Tri-O, favor of defendant no action; across the to meet this freeway schedule. damages cause of no were awarded. Groen was strength concerned about the of Thereafter, plaintiffs moved for the PD-10 rope repeatedly asked if vеrdict, notwithstanding the and alterna- Clinger was “sure” strong “be The tively for a new trial. court denied enough.” Clinger, who claimed to be know- motions, both took this plaintiffs ap- ledgeable about ropes, assured him that peal. was. Support Evidence to Verdict assurances,
Relying on these Groen flew with the PD-10 The first day, condi- instructed defendant tions ideal work went and the well. Tri-O had a duty to use reasonable care in On the second or day, third he flew wire up selecting, furnishing, inspecting to and across freeway. On the far side rope and in Groen of informing any known of the freeway, rope snagged defects or facts that would affect the rea- tower arm and Whipsawing broke. back *4 rope, sonable and safety of the that the the it helicopter, wrapped toward around failure to exercise such reasonable care mast with velocity the such that it bent the negligence.1 would constitute On appeal, alongside mast, control rods that run plaintiffs contend that the jury’s finding making impossible control the angle to negligent that Tri-O had not been was un- whirling the blade. The blade pitched evidence, indeed, supported by and, that downward, cutting off the tail of the heli- weight it was contrary the evi- copter. plummeted The helicopter approxi- dence. mately ground, feet to the where it province It is the exclusive of the crashed, bounced, again. and crashed jury to determine credibility the wit Groen landed on the base squarely of his nesses, evidence, and weigh make find spine, suffering permanently disabling inju- ings Lloyd, of fact. Williams v. 16 Utah 2d ries. The destroyed. 429-30, 403 P.2d Jo Tri-O, against this action Groen sought seph v. W.H. Latter-Day Groves Saints compensation personal injuries, for his 94, 99-100, Hospital, 10 Utah 348 P.2d expenses, earnings; medical lost Rocky and the evidence is Where con sought helicopter. Mountain the value of its instructed, flicting jury properly and the give After district court refused to upset findings do not those of fact on plaintiffs’ requested jury instructions on appeal except showing that the evi upon a express warranties, breach of dence, light viewed in the most favorable to case jury solely went to the verdict, clearly preponderated ap so in theory negligence. pellant’s persons favor that reasonable By special verdict, found that could not differ on the outcome of the case. nor plaintiff neither defendant Groen Tri-O Corp. Sather, Development Ute-Cal Land negligent. verdict, separate In a the Utah, 1240, 1245 (1980); 605 P.2d Nelson v. general found that dam- Watts, Utah, аges totaling $212,000 would compensate ample The record at trial contained (The injuries. parties Groen for his could have evidence from which already stipulated helicopter’s that val- $37,500 par found or neither party negligent this amount either ue would compensate Mountain.) ty negligent. A person provide any See Restatement A1. who contracts another to use it of such defects. (Second) (expressly equipment purpose performing with for the of Torts § duty adopted аpplied essentially him a identical contracted work owes to furnish Reynolds Foundry Mach. v. Am. equipment reasonably safe for facts in the use for (1952)); supplied, 41 Am. which it is use reasonable care to inspect equipment remedy Independent 30§ discover and Jur.2d Contractors defects, expected and to inform those who are cases cited therein. poly- permitted. representa- conditions Tri-O’s There was abundant evidence flying used in commonly propylene they testified had obsеrved other tives superintendents wire. Two construction miles per wire between 10 and 20 pilots electrical towers experienced erecting seen any had never they hour and stringing pilots wire testified that per miles pilot fly other as fast as 30 hour. projects usually polypropylene their used flying The inventor of the method testified rope, flying pilot and the who invented the threading a at 18 to miles traveller that, given method used Groen testified upper been the limit of per hour choice, used always polypropylene prac- and that it the best safety probably though usually larger than ½ inch diame- per 10 and 12 miles tice to between ter. hour, slowing per to 8 miles hour at down Candlish, Groen, towers, meeting snags likely. At the between where are more superintendent, Clinger, and the Tri-0 argue representa- Plaintiffs that Tri-O’s morning, show-up yard on the first tives, flying while in who observed Groen lead Clinger informed Groen that him, negli- radio communication with However, trial, had been used before. failing against flying him gent warn Clinger both Grоen admitted the PD-10 high speeds at such practice replace was not common However, himself, Clinger, and Tri- rope every day. ropes lead such Typically, the job line foreman all testified that O’s changed whenever to show they begin cause for “going great” with no con- signs inspec- of wear or visible on Moreover, right up cern until the accident. industry tion. in the speed technique three testified ropes eight are used from two weeks to *5 solely the within flying in depending months on the amount of wear expertise discretion and and that pilot’s the rope the vis- they inspected suffer. command,” was the the “pilot as thorough- also ually, inspected and Groen authority regard operation of final ly every morning hand over hand before the aircraft. The was so instructed. jury began fly, including morning of expert witnesses for both sides were any apparent accident. Neither man found in conflict on fitness of the Plain- Hence, evi- defect. there was substantial when new experts tiffs’ testified that hаve con- dence from which could jury strength 4,400 rope breaking had a was in se- negligent cluded that Tri-0 broken at 25 miles pounds and rope to lecting furnishing or polypropylene However, the time Groen per hour. at be- of its failing Groen or in to inform him it, signs of wear gan using rope showed previous use. 40 its percent breaking and had lost disput- The cause of the accident was also 2,600 only so that it sustain strength could ed. wire is flying The record indicates that pressure have broken pounds of and would inherently dаngerous pilots work that few per record only at 16 miles hour. The length It was any undertake for of time. 16 speeds clear that of between and 25 undisputed snags at trial are a com- wire, per flying hour are common in miles occurrence. perhaps mon and unavoidable opined of plaintiffs’ experts and one un- Although it was at trial uncontroverted not fit equivocally rope for its excellent, experienced that Groen was contrast, intended use. defendant’s ex- pilot compe- general with a reputation possible pert it was not wire, flying tence in there was also substan- damaged determine whether the tial evidence he flew much credible during or the accident and before be- pilots even with ideal faster than other cause of the braided construction weather, terrain, distance conditions greater would have Sampson between towers. Groen testified that tendency polypropylene than the twisted ap- going the time of the accidеnt he was snag working under the wear proximately per 25 to 30 hour miles as flying it was his as fast conditions of wire. practice
603
fact,
As the
trier
they
based
part
their verdict in
to give
conflicting opinions
entitled
such
their understanding and discussion that an
weight
appropriate
whatever
it deemed
insurance
company would compensate
to reject them
v.
altogether.
injuries
Dixon
Stew Groen for his
in the
they
amount
art, Utah,
(1982);
658
591
designated.
P.2d
Foreman
juror
&
Another
stated that he
Fallon,
875,
Corp.
Clark
v.
3
thought
coverage
Cal.3d
479 P.2d
pro-
insurance
would be
362,
Cal.Rptr.
(1971);
92
162
v. Dill
vided by
parties,
jurors
State
both
and two other
ingham Corp.,
393,
60 Hawaii
591 P.2d
stated
been
by
1049
that insurance had
discussed
(1979); Simpson
Johnson,
357,
deliberation,
jurors
v.
100 Idaho
during their
but
597
(1979); Boxberger Martin,
only
question
P.2d 600
v.
of liability
after the
was de-
Okl.,
(1976);
Expert and Opinion Evidence 183 §§ only It well settled that (1967). evidence impeach admissible to ver
Where, here, as “there is a reasona dict is that which demonstrates that evidence, ble basis in the or from lack of verdict was chance determined or result evidence, upon 41; which reasonable minds ed from bribery. Utah R.Evid. Utah unconvinced,” could remain Corp. 59(a)(2). Centurian R.Civ.P. All other proof Fiberchem, Inc., Utah, v. room, what was said or done the jury (1977), 1253 aside decline set including evidence that con jury was jury’s finding proof that the prepon did not disregard fused or that it misunderstood derate favor of negli defendant Tri-O’s law, ed the or the applicable facts is inad Id.; gence. Bennion, Erickson v. 28 Utah missible long-standing as violative of the 371, 374-75, 2d 141 policy against attemрts to undermine Park v. Alta Ditch Canal Couch, Utah, 2d integrity of verdicts. State 86, 93, 458 P.2d P.2d 95-96 Stringham
Broderick, Utah, P.2d Gee, 96, 101-02, II. Jury Misconduct State v. 28 Utah 2d (1972); Ostertag 665-66 v. La argue that Plaintiffs the district court Mont, erred in denying their motion for a new urged trial. The motion im- *6 properly negligence based its of verdict no The affidavits in this case no make on considerations of insurance extraneous the or any juror’s statement that verdict to the evidence the and instructions to the by assent or in to it obtained chance jury. bribery. duced The affidavits were by motion, of as a support plaintiffs incompetent their sub- therefore inadmissible and a eight jurors. grant mitted affidavits of six of the basis on motion for new which a of they Three the six stated trial. error that were The district court committed no by wording special the jury confused of the ver- a new trial on the basis of denying dict, Simons, Utah, they unable 551 to resolve their misconduct. Johnson v. 515, by reading instructions, (1976).2 confusion the P.2d jury 516 Groen, injury jury’s finding any argue plaintiff, 2. Plaintiffs also the sate David for L. negligent proximate that Tri-0 was its not simulta- hе has sustained as a $212,000 finding fairly neous com- (Emphasis question.” result of the accident in pensate injuries, together, Groen for his taken added.) given A similar the instruction jury are so inconsistent to evidence miscon- damages. jury regarding special jury was The duct. plaintiffs dam- never instructed to determine verdict, contrary, standing the On ages only if it also found that defendant Tri-O alone, jury exactly indicates that as it did Moreover, negligent. special ver- been charged gener- regard had been do. With jury upon find- dict fоrm which the entered its damages, al was instructed: “It will plaintiffs ings required assess the your duty pre- be further to determine from a only damages “[cjonsidering the instructions ponderance of the the amount of mon- evidence damages, concerning and without and evidence ey fairly adequately compen- that would 604 false, Wood, 2d Implied Express
III.
Warranties
is
v.
10
at
Welchman
167;
Bertran,
328,
v.
43
Gagne
353
P.2d
Plaintiffs contend that
district court
481, 486,
15, 19
a
(1954),
275 P.2d
Cal.2d
refusing
erred
instruct
on
by
person may
warranty
liable for breach of
be
liability
theories of defendant Tri-O’s
under
his
of all reasonable or even
despite
exercise
of
implied
express
warranties
fitness
James,
v.
possible care. Moore
pertaining
the rope.
91,
221,
(1956);
94-95,
297 P.2d
222-23
warranty
A
is an assurance
one
356,
Bunick,
353,
v.
279 Or.
569
Chandler
to a
party
contract of
existence of a
1037,
1039
upon
party may rely.
the other
fact
which
reasons,
foregoing
jury’s
For
promisee of any
It is intended to relieve the
finding
negli-
that defendant Tri-0 was not
himself,
to ascertain the fact for
and it
duty
gent
in this casе does not establish
promise
damages
amounts
a
to answer
of
plaintiffs
no action for breach
if
proximately caused
any injury
warranty.
or
Moore v.
express
Quagliana
proves
fact warranted
untrue.
James, supra.
Builders, Inc., Utah,
Exquisite
v.
Home
538
301, 309
Wood,
v.
10
(1975);
Welchman
that absent a sale or
Defendant contends
165,
(1960);
167
Utah 2d
goods, warranty
except
of
no
can arise
lease
130,
Nielson,
v.
510
Ariz.App.
Hoover
20
term,
express
as an
contract
absent
aff’d, (1973),
P.2d 760
Ariz.
history
as a
of
here.
It
true
matter
Turnеr,
P.2d 990
Steadman
developed
of
warranties
context
(N.M.Ct.App.1973);
N.M.
be enough rope because the that I hand, spected rope looking hand over using larger had been diameter signs and a different of wear. asked rope Sampson rope, again —a said, “Oh, and he This yes. rope Clinger if he was rope going sure —don’t worry about nylon poly- it’s be strong enough. Groen testified: propylene rope and it’s bit as every said, [Clinger] And Ken “Yes. Don’t strong as Sampson rope.” And I worry rope about the That is as thought, well, I don’t know. It’s not as strong Sampson rope.” big you [Clinger responded:] know. — “Well, new fabric thing. kind of And it piece ... He ... again pointed to strong enough. It will plenty be Cats, said, equipment, one of the strong. This rope every strong bit as “That will lower that over a Cat I, as Sampson rope.” And still not know- strong. pretty cliff.” And to me that’s ing anything ropes using about and not I figured certainly And that Cat was before, nothing kind of I had heavier than a and if it would on, my go own to so I was still kind of *8 that, certainly up do it would hold for the querying rather whether work this would and be strong enough. accepted. And he insisted wear and and so I stress Stephen Robertson Lumber Co. v. 143 N.W.2d Co., Coop. Farmers Elevator 274 Minn. 23- train, fact, Candlish, consciously Groen was to that intended pilot Clinger Joe reliance, in the did present meeting both the Groen’s that Groen at induce site, job and he that show-up yard rely. and at in fact The record also clear did, fact, this sub- testimony fly polypropy- in with the corroborated Groen’s Groen ject in every Clinger’s detail.8 in assurances rope lene reliance on strength, waiting than for the of its rather here, Where, conflicting as there is rope preferred.9 he Groen Sampson evidence, rep the issues of whether Tri-O’s about the nothing testified that he knew state made the above actually resentatives of breaking working loads strengths and, so, whether those statements ments if Clinger repre- ropes but that generally, express warranty constituted oral an knowledgeable he was sented him that sub questions properly of fact that are been ropes, journeyman about that he had a Park v. Man jury. mitted Moorman lineman, read he understood and that 347-48, ufacturing Co., 121 Utah concerning literature manufacturer’s 914, 918 Hermansen, Nielson v. fly Groen ropes most of used wire. 180, 184, 166 109 Utah that with the polypropy- testified he flew Annot., 67 625- generally see A.L.R.2d site rope up job lene hooked at the (1959). Compare Morris v. Mountain Clinger it was Ken said Utah, “[b]ecause Telegraph Telephone States strong it was okay.... was satisfied (1983), in which we held that strong Ken told me enough. Clinger it was interpretation unambiguous of an writ I used enough why that’s it.”10 to be question ten contract was a of law judge. decided there sufficient We conclude that of fitness express warranty evidence an not re warranty An does express theory plaintiffs to entitle have that quire any words. Welchman particular liability presented to the The dis- jury. 168; Wood, 10 2d at P.2d at Utah refusing requested trict court erred in 183, 166 Hermansen, Nielson v. at subject. instructions on this 537; Creer, at P.2d at Rockhill Any 189 P. positive at 671. direct and for the defendant fact, as from distinguished affirmation of of action part (as affirmed causes by one opinion judgment, mere made negligence implied warranty) other party to the contract that induces the the case remanded part, reversed party to thereon constitutes act in reliance trial, trial. At partial new express warranty. an first trial verdicts of the Tri-0 ample evidence that neither defendant nor
There was
having
been sustained
Clinger’s
negligent,
Grоen
assurances
Groen was
understood
res
appeal,
not
on this
will be
rope’s strength
challenged
as
affirmation
evidence, Clinger
Clinger: Absolutely.
plaintiffs’
8.
tes-
contrast to
meeting
show-up yard
you
polypro-
tified
at the
him to
When
asked
with
Q:
pylene
expressed
morning
objec-
first
when Groen
you do so
his
did
after
strength
poly-
concern over the
of the 'A-inch
tions?
“get
propylene rope, Clinger
him
offered to
Well,
Clinger:
yes.
anything
get
That I could
him
he wanted.
rope
dangle
Clinger
he could
Cat with.”
inspected
rope
fact
visu-
10.The
that Groen
laughed
this and asked
that Groen
ally
using
negate
exist-
before
it does not
was,
Clinger
kind
what
of a
to which
warranty
(1)
express
the rec-
ence of an
since
responded:
be a
“And I told him that would
represented
Clinger
himself as
ord is clear that
Sampson
rope.”
further testified
knowledge
having superior
ropes,
and he
Groen
Sampson
he had never heard or seen
“said
rely,
in fact
and Groen did
intended
good
I said
And if it was as
as
knowledge;
rely,
superior
it wаs
on this
was,
try
like to
some.”
undisputed
that the
to the
at trial
eye.
to the untrained
visible
you
9.
Mr. Groen to
When
asked
Q:
you
polypropylene [rope],
know
half-inch
did
rope?
strong
Sampson
not as
that was
*9
judicata between the parties. The second
alleged
tion
express
because the
warranty
trial will therefore be limited to those mat-
by
claimed
Groen was made by Tri-0 after
pertaining
ters
plaintiffs’
cause
signed
the contract was
and therefore
action
express
for breaсh of an
warranty
supported
would have
by
to be
new consid
damages
and the
attendant
thereon.11
eration. See Zinzow Construction Co. v.
Giovannoni,
263 Wis.
HAM, JJ., concur.
HOWE, Justice: (concurring). concur, but I believe that on the retrial
the court will need find that any express
warranty by made Tri-0 supported
legal consideration. I make this observa- finding intermingled
11. We are mindful that the made a issues so that fairness to both plaintiffs’ damages parties requires amount this on retrial both. Nelson v. Cf. finding Utah, Trujillo, case. such Whether re- should be opened case, in connection new trial on conclude retrial should in liability depends damages issue of liability. two whether volve as well