*1 court, by the trial 400 P.2d 205 as co-owners as found precedent until the condition of withdrawal RUMSEY, Elbert B. Plaintiff occurred, at which time an evaluation Respondent, in con- interest distribution their and/or formity to be made accord- thereof were CITY, municipal corporation LAKE SALT Utah, of the State of Defendant agreement. terms The ing to the Appellant. correctly

trial court determined proper No. 10181. binding or not prior evaluation was parties contemplation within Supreme Court of Utah. 1960, consti- the action of June March right under payment, a for tuted a demand previously agreement which been exercised.’ of this special circumstances

Under the if the de-

case, patently unfair it would plain- retain were allowed

fendants por- investment, as as well capital

tiffs’ capital working profits, their as twenty-eight year period when

during value, and then greatly increased

assets increment.

deny in this them share interpretation agreement amply justified trial court is surrounding its and circumstances

facts parties conduct of

execution

subsequent evaluation thereto. The 3, 1960, interest,

plaintiffs’ as of June

supported by the evidence. plaintiffs.

Affirmed. Costs to McDONOUGH, J.,C. WADE, concur. JJ.,

CROCKETT Holmgren, City Atty.,

Homer A. M. Marsden, City Atty., Asst. Salt Lake appellant. Schaerrer, Neil D.

respondent.

WADE, Justice.

Respondent Rumsey brought Elbert B. appellant this action Salt Lake City personal injuries in sustained a pool operated City. swimming by This appeal jury judgment is from a verdict thereon in Rumsey. favor of Elbert B. Appellant judgment seeks reversal of the grounds: on three The (1) failure of spondent Rumsey to Springs Plunge, pool occurred, in which the accident was operated by appellant pro- City prietary capacity. respondent (2) That did not prove that the defective condition of respondent from which board was to dive when the attempting accident oc- proximate curred was the cause of said ac- prejudi- cident. (3) court committed cial in error of addi- allowing taking tional evidence after the verdict of the pertained was rendered. This evidence to the issue of whether the Wasatch was Rumsey Respondent alleged in his com- plaint paid an admission fee which swim the Wasatch appellant City. governmental capacity. reply, than a was alleged neg- then City He further was moved the court to- clarify judgment or amend ligent failing grant to have the hoard new proper safe question condition and in fail- lifeguard immunity. present supported by assist This have motion ing him he lost balance fell be- affidavit when his counsel that the question sovereign immunity the end of the cause the slickness of was dis- pre-trial attempting conference, cussed at the from which he was and in answered, holdings view of the dive. The of this court in two averring complaint operation of ac- cases failed to state cause same involving granted, Springs Plunge which relief could respondent’s allegations generally denied admitted that the proprietary capacity that was in a defenses and there- its affirmative neg- sovereign immunity fore not an is- contributory was guilty reason, plain- sue in risk. the case.1 For this ligence had assumed the any proof tiff did not offer concerning pre-trial held and in the A hearing respond- issue. The did not controvert exceptions among the order *3 ent’s affidavit to the effect that the issue of the left for determination at were not sovereign immunity had been discussed appears pleaded the trial of issues there the hearing. abandoned at parties agree “1. The the following: that injuries the time of his claimed City’s The court denied the motion but was a business invitee.” granted motion. The case reopened submitting purpose was for of the City

At the of the trial the moved close testimony im- sovereign issue of for a directed verdict which was denied. only. Testimony munity was elicited from After returned a verdict in favor Rumsey, City’s Mr. herein. The respondent, City judg- for moved a of parks, manager and the commissioner notwithstanding ment the verdict on Springs Plunge testified. also it had grounds moved for a directed same testimony of the wit- The uncontradicted is, verdict, that the evidence was in- that op- City although nesses revealed that a and because sufficient to sustain verdict in swimming pools erated other connection had failed to charge parks for no with its which op- that the Wasatch admission, proprietary by erated rather made for the Wasatch a 156; 111 Griffin v. Salt Lake Utah 176 P.2d Burton Lake Utah v. Salt 443, 51 A.L.R. 364. 253 P. thereof, only it, prevents was the swimming pool legislative or absent ” * * * operated by City in connection its with sanction use than parks and for which an fee governmental admission must be be free n competitive pools op- However, legislative with other from inhibition. by charged erated private operation business was court has held that the of a swim- ming pool and on fee enterprise which federal state taxes is not such an as can were In fact it was engaged city collected. admitted be govern- a in a only position its held manager activity who has that is Whether approximately years opera- that being operated by its governmental in a city materially changed proprietary depends during had not operated. Operated time. manner in which it is is, compe- in a manner in which it operated swimming pools tition with It is the contention profit by private individuals, good it is cause of failed to state not, may in a “it” allege capacity, if action he failed to sufficient because pro acting be found to it facts with charging capacity.3 capacity, citing

prietary Wade

City2 authority. case involved That as municipal Respondent complaint Rumsey’s of a by the al operation leged our airport. City operated held that under there We municipal air Springs Plunge, paid an ad operation and that he statutes activity However, there fee wheth port mission for entrance. a allegations state granting er those were sufficient to did not err fore the court though plain wheth cause action summary judgment even necessary allege evi er it is more facts as precluded introducing from tiff was operation competitive to the nature nature and extent dence as com so that it can from the be determined those running activities businesslike produced plaint rather evidence than from pointed out airport. there We govern at trial whether the grant cities as ours statutes such *4 de proprietary, or need not be airports generally supervise the right above, pre-trial cided here. shown As control atmosphere government in “an case. held in this conference was proprietary precludes that either above; 374, 1 cf. also Ramirez v. 3. Footnote 2. Wade v. Salt Lake 463, 102, Ogden P.2d 2d 279 3 Utah 353 P.2d 914. 539, are A.L.R.2d the facts 47 in which distinguishable. 314 parties In view of our conclusion that appears that

pre-trial order it accident, governmental re- issue of was dis time of the agreed that at the posed pre-trial of in the conference in favor spondent business invitee. Such was a herein, the event whether material only he fact could op- being court erred in Plunge reopening case allow Springs the Wasatch capacity.- evidence to the in which pertaining manner proprietary If in a erated City operated governmental Plunge were pro from of no concern here. The immune capacity the would be ceedings only surplusage could regardless the status of liability prejudicial could not have been spondent. appear therefore It would rights appellant op- of the dis under the facts the issue of whether closed in the record.5 erated disposed matter which was was a Appellant City contends that the evidence is- and the in the conference was insufficient to sustain the verdict be- 16, Rule trial were therefore under sues for cause there was no evidence from which it remaining issues of to the U.R.C.P. limited exposed could be found that the end of the negligence damages, modified unless proximate board was the cause of prevent injustice.4 manifest at the trial to respondent’s injuries. agree. cannot We disposed are more to that conclusion We There was evidence from which the City to con- the failure of the view of reasonably could have found that an respondent’s at-

tradict the affidavit employee noticed at least opposition mo- filed in torney two months before accident notwithstanding judgment tion for safety-walk that the material on the alumi verdict, that the issue exposed num off had worn proprietary operation was discussed end made note to the metal and had admitted that manager calling it to the attention of pro- Plunge was potentially that such condition could be done, prietary capacity, could have as it However, repairs made hazardous. no were facts, by filing if were not the safety-walk until after accident. 59(c), provided designed affidavit as Rule opposing rough material was of a texture slipping. Although prevent U.R.C.P. 76; Peterson, 16, 11 P.2d Hales v. Utah 4. Rule U.R.C.P. By Through 2d P.2d Road Commis- 5. State Peterson, 2d sion v. Utah *5 city operate lish that a can’t testify swimming as to the location of could not pool spot diving proprietary capacity. board from which on the other than exact fell, testify involuntarily he did that he say it Nor is to answer the is- portion slipped a slick of the he sue conclusively immunity was resolved hoard, just previous- portion having he City by pre-trial stipulation per- ly feeling not slick hut stood Rumsey invitee,” was a “business —im- fectly to safe. This evidence was sufficient necessity that such plying conclusion of proxi- finding by jury sustain put competition privately with respondent’s injury mate cause of operated pools. Two good reasons refute having knowledge City’s negligence, after such conclusion: defect, repair keep failing to in a safe condition. 1) person, A example, may be a business respondent. goes invitee when he city to Affirmed. Costs pay

treasurer the tax on the business McDonough crockett, jj., operates, but such a circumstance could ipso concur. city facto make the a businessman any of the rules game incident to a (dissenting). Chief Justice of musical chairs. The whole thing is a respectfully dissent. I fact, all, matter of Rumsey —that’s —and got allege failed to demanded and conditionally issues, one of precedential required the fact determine to construct his claim important was whether compensability. of which of tortious the most proprietary ca- acting in a 2) Assuming arguendo, that the officials proved nor Rumsey neither pacity. attempted city stipulate away fact, was neces- we have said done, immunity, latter’s it couldn’t since should have sary.1 circumstance This a government city’s official cannot sell the matter, presumptively the since solved immunity impunity.2 down the river with operates trial, opinion As to the second the main in two It no answer to assert says surplusage govern- it because the pool have previous cases we matter was resolved proprietor, since role as affirmed the stipulation pretrial. The latter fallacious own or fall on its each case must stand equally fallacious conclusion followed facts, decisis can estab- and no end of stare Elkington, 2. v. 100 Utah Tooele v. Salt Lake Wade (1941). (1960). P.2d 406 353 P.2d 914 400 P.2d 209 assumption former.3 Counsel for did not entertain himself MALMSTROM, Marion W. Plaintiff since, assumption, gratuitous or novel Appellant, trial, he con- motion for another very Rumsey ceded that failed OLSEN, Theron C. Defendant and *6 Respondent. City. by the prove proprietary role No. 10110. this writer that It seems inconceivable Supreme Court of Utah. rules, litigant gets a who fail- is valueless because verdict which March gist of factual prove the ure to cause, simply that another ask his could arbiter before a different

trial be had date, facts, prove a case at a later my prove conclu- before. If failed correct, second and such

sion is

abortive, inescapable to conclude it is plaintiff to of a

than that the burden city cannot be chief, by assuming case in

eliminated his side, merely agree-

that counsel on the other pretrial was a at

ing invitee,” city’s can

“business thus waive sovereign give thus

claim trial on an essential another

provable issue. opinion my this case should be re- proof pleading

versed for lack only legitimate trial that was had.

CALLISTER, J., concurs in the dissent-

ing opinion of C. J. Jopes Ogden, Lake in the main v. Salt 3. Ramirez v. cited concerned. See also County, opinion, but not P.2d 728 is different as to facts charging (1959). respect admission is (cid:127)with