UNITEC Corp. v. Beatty Safway Scaffold Co.

358 F.2d 470
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 19, 1966
DocketNo. 19788
StatusPublished
Cited by9 cases

This text of 358 F.2d 470 (UNITEC Corp. v. Beatty Safway Scaffold Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITEC Corp. v. Beatty Safway Scaffold Co., 358 F.2d 470 (9th Cir. 1966).

Opinion

BARNES, Circuit Judge:

This is an action brought by Beatty Safway Scaffold Company of Oregon, hereinafter called “Safway,” to recover damages upon contract claims against The Unitec Corporation based upon the furnishing of services and materials in connection with the construction of ra-domes for the United States Air Force at Mt. Hebo, Oregon, and Cottonwood, Idaho, and to recover damages upon negligence claims against The Unitec Corporation and Goodyear Aircraft Corporation for windstorm damage to plaintiff’s scaffold which collapsed at Mt. Hebo, Oregon, in October 1962. As an outgrowth of this action, “Goodyear” and “Unitec” filed crossclaims against each other seeking indemnity with respect to liability for any damages awarded to Safway for the destruction of the Mt. Hebo scaffolding.

The district court’s jurisdiction of this controversy was based upon diversity of [473]*473citizenship (28 U.S.C. §§ 1332, 1441). Our jurisdiction to entertain the appeals arising from the district court determinations is founded upon 28 U.S.C. § 1291.

The district court entered judgment after trial to the court in favor of Saf-way and against Unitec on Safway’s contract action, and in favor of Safway and against both Unitec and Goodyear on Safway’s negligence claim. From this judgment, appeals were filed by all parties. Safway contends that the district court erroneously calculated damages to Safway’s prejudice. Unitec challenges the district court’s determination that it was liable under the contract and negligence causes of action. Goodyear appeals from the finding that held it liable to Safway under the negligence claim, and the finding that it was not to be indemnified by Unitec for its liability to Safway. Finally, as a result of Goodyear’s assertion of right to indemnification, Unitec counter-charges that Goodyear owed it a duty of indemnification for Unitec’s negligence liability to Safway.

The factual background of this three-party controversy evolves from the grant of an Air Force contract to General Electric Company for the construction of radomes at Mt. Hebo, Oregon, and Cottonwood, Idaho. A radome is a cover or dome, frequently constructed of fiberglas, which is used to protect a radar installation from natural elements. General Electric contracted with Goodyear for the furnishing and erection of fiberglas panels for the radomes. Goodyear furnished the fiberglas, and, in turn contracted with Unitec for the construction work. Unitec then entered into a contract with Safway to furnish and install or erect scaffold to assist in emplacement of the fiberglas panels at both sites.

At the Cottonwood site, Safway’s performance of its contractual obligation to furnish both equipment and labor was interrupted when Safway employees refused to cross a picket line directed against Unitec’s non-union employees. As a result, Unitec undertook a substantial portion of the labor related to the scaffolding operations. The effect of this change in the contractual arrangement as originally conceived is the subject of the controversy sounding in contract that was decided in the district court and now appears before us as an appeal and cross-appeal.

Radome construction at the Mt. Hebo site was interrupted for a different reason. After partial construction, a windstorm of extreme velocity apparently resulted in the delamination of the fiber-glas skins of the panels, leading to the collapse of the partially-erected radome and the scaffold within it. The district court found that both Unitec and Goodyear had acted negligently in the course of the radome construction, and that their negligence was the proximate cause of the resulting damage. The court also rejected the defendants’ contentions that they be relieved of liability for any negligent acts on the grounds of contributory negligence and/or act of God.

In concluding that both Unitec and Goodyear were negligent, the district court characterized both parties as “actively” negligent. It therefore rejected Unitec’s claim against Goodyear of common-law indemnification based on the distinction between “active” and “passive” tortfeasors. In finding both defendants liable in negligence, the district court also rejected Goodyear’s claim to indemnification on the basis of contractual assumption of indemnity responsibility by Unitec in its agreement with Goodyear.

We direct our attention first to the controversies arising from the Cottonwood project.

I

The principal dispute arising from the Cottonwood operations involves Safway’s claims for contractual payment and Unitec’s counter-claims for damages for breach of contract. At the time of contract negotiations, Safway offered Unitec a choice of two possible arrangements : (1) to supply labor and materials at a total cost of $25,500, or (2) to supply materials without labor at a cost of $14,-000. Unitec accepted the total service [474]*474contract, and Safway commenced operations on September 22, 1962. Two days later, however, on September 24, 1962, the picket line directed against Unitec’s non-union employees forced Safway to discontinue the furnishing of a labor supply. Unitec asserts that this cessation of labor activity by Safway was a clear breach of the contractual terms which could not be excused by the doctrine of objective impossibility. We agree that this labor dispute is not a circumstance of objective impossibility. However, we do not understand Safway’s position on this appeal to be that the labor dispute did excuse it from its contractual obligations. In the absence of additional circumstances, therefore, we would have no difficulty in reaching the determination that Safway is responsible for its contractual breach in failing to supply the necessary labor.

Additional factors, however, did arise. When Safway no longer was in a position to supply the labor forces for the scaffolding operations, Unitec substituted its employees. Unitec asserts that its labor costs in completing the necessary work exceeded the labor cost contracted with Safway by some $8,291.42, and that Saf-way is liable in this amount for its contractual breach. Safway, on the other hand, contends that at the time its employees refused to work at the picketed site, Unitec and Safway entered into a contractual modification or partial rescission of their original contract, and mutually agreed to convert the contract into the rental-only, no-labor contract previously quoted at $14,000. Under this construction of the facts, Safway would have no liability for the excess labor costs sustained by Unitec.

Both parties concede that the evidence on the question of oral modification is highly conflicting. In such situations, great reliance must be placed on the assessment of the conflicting evidence by the trier of fact, who is best situated to judge the credibility of the witnesses before him. We can only differ from his assessment if we determine that it was clearly erroneous and without support in the record. Rule 52(a), í’ed.R. Civ.P. The record before us in the present case is replete with evidence in support of the district court’s finding of an oral modification, and that finding is therefore not subject to reversal. The record clearly indicates that Unitec supplied its own substitute labor after September 24, 1962, without asserting any claim of a contractual breach by Safway.

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358 F.2d 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unitec-corp-v-beatty-safway-scaffold-co-ca9-1966.