Balise v. Underwood, 36159

Citation62 Wn.2d 195,381 P.2d 966
Decision Date23 May 1963
Docket NumberNo. 36159,36159
PartiesPeter L. BALISE, Jr., Individually, as Guardian ad Litem for and on behalf of David Balise and Michael Balise, and as Administrator of the Estate of Joan Balise, deceased, Appellant, v. James F. UNDERWOOD, Defendant, Morrison-Knudsen Co., Inc., a corporation, Respondent.
CourtUnited States State Supreme Court of Washington

Durkan & Durkan and Wolfstone & Piehler, Barbar, Ohnick, Seattle, for appellant.

Allen, DeGarmo & Leedy, Seattle, for respondent.


At about 3 p. m., on January 23, 1960, a head-on collision occurred on Stevens Pass Highway, approximately 3 miles east of Gold Bar and 15 to 17 miles west of Skykomish, Washington, between automobiles driven by plaintiff Peter L. Balise, Jr. (hereafter referred to as appellant), and James F. Underwood (hereafter referred to as Underwood). Appellant, individually, as guardian ad litem for his two minor sons, and as administrator of his deceased wife's estate, initiated this action alleging negligence on the part of Underwood and seeking damages for personal injuries and wrongful death. Appellant named as defendants Underwood and his employer Morrison-Knudsen Co., Inc. (hereafter referred to as respondent), alleging that, at the time of the accident, Underwood was 'driving his automobile * * * in the course and scope of his employment as a mechanic for Morrison-Knudsen Co., Inc.'

Respondent answered denying Underwood was at the time of the collision acting within the course and scope of his employment. Underwood answered denying such allegation because of insufficient information upon which to form a belief.

Respondent moved for summary judgment upon the grounds that no genuine issue of material fact existed as to the scope-of-employment issue.

Based upon the pleadings, affidavits, and depositions presented, the trial court granted the motion and dismissed appellant's action against respondent. From this order appellant prosecutes his appeal.

Review of the pleadings, affidavits and depositions before the trial court reveal the following circumstances. Underwood, a resident of Edmonds, Washington, was employed, at an hourly wage rate, as a welder-mechanic by respondent, upon a company project located near Skykomish, Washington. He commuted by his own automobile between the jobsite and his home in Edmonds. Underwood, by his employment agreement, was required to furnish his own tools up to a certain size. He customarily kept these in his automobile, except when actually using them.

An existing union operating agreement provided, in part:

'When jobs are located outside of the city limits of Everett, * * * and when camp or board and lodging are not provided, not following additional remuneration will be paid: * * * Over 35 miles from city center--s4,50 per working day shall be paid.'

Under this provision, the Skykomish project being in excess of 35 miles from Everett, Underwood received s4.50 per working day, which by union-company interpretation he was eligible to receive whether he resided in Edmonds, Everett, or Skykomish.

On the day of the accident, Underwood reported for work on the project at 6 a. m. and signed off the job at 2 p. m. At the time of the accident, about 3 p. m. he was traveling west, towards Everett and Edmonds, on Stevens Pass Highway. Following the accident, tools were observed in the Underwood vehicle. Some of the tools, variously estimated as weighing up to 700 pounds, appeared to one witness to be in excess of the size required to be furnished by Underwood. A battery charger belonging to respondent also was in the automobile. Immediately following the accident and notification thereof, the project manager and Underwood's immediate supervisor went to the scene and thereafter, together with Mrs. Underwood, sought and ultimately obtained official release of the tools and equipment in the Underwood vehicle. During the course of seeking such release some representations were made relative to company ownership of some of the tools and/or equipment.

Following the accident, Underwood filed a claim for workmen's compensation alleging that, at the time of the accident, he was in the course of his employment. After initiation of this suit, Underwood's counsel served upon appellant a copy of an answer admitting appellant's allegation upon the course-of-employment issue. Underwood subsequently abandoned his workmen's compensation claim and served and filed his present answer denying for lack of information the course-of-employment allegation. Mr. and Mrs. Underwood testified on deposition to an undefined fear for Underwood's job.

During the course of discovery proceedings, appellant's counsel alleged, upon information and belief, the existence of a nonowner liability insurance policy on behalf of respondent, contending in effect that if such policy insured employees going to and from work it would be relevant upon the course-of-employment issue. Discovery was refused and the refusal confirmed by court order.

Appellant contends summary judgment to be inappropriate under the circumstances presented because, he asserts, an issue of credibility of witnesses exists. In support of this contention, plaintiff points to: (a) Underwood's action in filing and abandoning a workmen's compensation claim, and in serving and modifying his answer in this case; (b) the Underwoods' fear for Underwood's job with respondent; and (c) the representations and statements surrounding official release of the tools and equipment from the Underwood vehicle following the accident.

Respondent, on the other hand, contends these matters have been satisfactorily explained. and asserts it is otherwise amply demonstrated that Underwood, at the time of the accident, was simply employee who, having finished his day's work, was on his way home.

We, in company with other courts and text writers, have frequently cultivated the field of summary judgment. At the expense of repetition, our disposition of this case renders another walk around the field desirable. The following principles we conceive to be well established.

(1) The object and function of the summary judgment procedure is to avoid a useless trial; however, a trial is not useless, but is absolutely necessary where there is a genuine issue as to any material fact. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605.

(2) Summary judgments shall be granted only if the pleadings, affidavits,...

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    • United States
    • Court of Appeals of Washington
    • August 13, 2012
    ...102 P.3d 796 (2004) (“ ‘A material fact is one upon which the outcome of the litigation depends.’ ” (quoting Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966 (1963))); Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358 (1979) ( “A ‘material fact’ is one on which the litiga......
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    ...... material facts are particularly within the knowledge of the. moving party. Balise v. Underwood, 62 Wn.2d 195,. 200, 381 P.2d 966 (1963); Arnold v. Saberhagen Holdings,. ......
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    ...reluctant to grant summary judgment when material facts are particularly within the knowledge of the moving party. Balise v. Underwood, 62 Wn.2d 195, 200, 381 P.2d 966 (1963); Arnold v. Saberhagen Holdings, Inc., 157 Wn. App. 649, 661-62, 240 P.3d 162 (2010); Riley v. Andres, 107 Wn. App. 3......
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