Gilbertson v. City of Fairbanks

• Decision Date: 22 January 1962
• Docket Number: No. 85,85
• Citation: 368 P.2d 214
• Parties: George GILBERTSON, Appellant, v. CITY OF FAIRBANKS, Alaska, Appellee.
• Court: Alaska Supreme Court

Page 214

368 P.2d 214

George GILBERTSON, Appellant, v. CITY OF FAIRBANKS, Alaska, Appellee.

No. 85.

Supreme Court of Alaska.

Jan. 22, 1962.

Charles E. Cole, Fairbanks, for appellant.

Edward A. Merdes, of McNealy, Merdes & Camarot, Fairbanks, for appellee.

Before NESBETT, C. J., and DIAMOND and AREND, JJ.

NESBETT, Chief Justice.

Appellee commenced suit in the United States District Court for the District (Territory) of Alaska in 1956 to recover from appellant the sum of $5,146.25, the balance owed for utility services furnished between September of 1950 and August of 1952. Appellant denied the furnishing of the services, their value, that demands had been made for payment and admitted that no part of the amount claimed had been paid, alleging that no part of the claimed sum was due. Appellant counterclaimed alleging that on or about July 14, 1952, appellant's property, the Pioneer Hotel, was totally destroyed by fire because of appellee's agent's negligent acts in turning off electric power to water pumps being used to fight the blaze. The counterclaims were dismissed. Appellee moved for summary judgment in April of 1959 supporting the motion with the affidavit of Lester L. Glescoe, superintendent of appellee's electric and telephone departments. On May 13, 1959 appellant took the deposition of Ross Simpson, comptroller of appellee's utility system, and on the same date appellee took appellant's deposition. Memoranda were thereafter filed by both sides. Appellee also filed a later affidavit of Glascoe and the affidavit of Ross Simpson containing a summary and supporting detail of all utility charges made by appellee and payments received from appellant between August of 1950 through October of 1952, showing that the balance owed by appellant, before interest, was the sum of $5,146.25.

The motion was taken under advisement by the court some time after June 30, 1959, but had not been decided by February 20, 1960, the date on which the Superior Courts of Alaska officially assumed their state jurisdiction. The case was therefore transferred to the Superior Court for the Fourth Judicial District and that court granted the motion for summary judgment on September 30, 1960.

At the time the motion was filed Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., was in force in Alaska. At the time the motion was decided Rule 56 of the Rules of Civil Procedure of Alaska was applicable. The rules are identical in every aspect with which we are here concerned.

Appellant contends that his pleading and deposition when considered in relation to the original affidavit of Glascoe, raised a genuine issue as to whether appellant had paid the claim sued upon.

The original affidavit of Glascoe, dated April 21, 1959, was not designated to be included in the record. However, the allegedly 'conflicting and confusing' portion appears to have been quoted by counsel for appellant on page 8 of the deposition of Ross Simpson. It states in substance that between September 26, 1950 and August of 1952 plaintiff furnished defendant steam heat, electricity, water and telephone service for the Pioneer Hotel and 'that the agreed and reasonable value of the services thus rendered and utilities thus furnished was the sum of $5,146.25'. This affidavit was contradicted, according to appellant, when Ross Simpson testified by deposition on May 13, 1959. At this hearing Simpson produced a statement itemized by months showing the amount charged for each separate utility service furnished, the total of each monthly billing and the date and amount of all payments made by appellant. This statement reflected the gradually increasing monthly net balance owed by reason of the fact that appellant would regularly pay all items of the billing except that for steam heat. Appellant's argument seems to be that since the total value of all utility services rendered over the period were shown by Simpson's testimony and exhibit to be far in excess of $5,146.25, Glascoe's affidavit of April 21, 1959 was incorrect and confusing and this, coupled with appellant's testimony on deposition, raised a genuine issue of fact.

We do not agree. Glascoe's affidavit, as appellant himself points out, was patterned after the wording of the last paragraph of the complaint. Instead of stating that the net balance owed by appellant for utility services furnished over the period was $5,146.25, it stated that the total value of all services rendered over the period of time involved was $5,146.25. However, if appellant had any doubt as to what he was being sued for when the complaint was filed, the picture was clarified by the testimony and exhibits produced by the deposition of Ross Simpson. Before hearing on the motion, Glascoe filed a clarifying affidavit on June 29, 1959 which stated that the sum for which no payment had been received for utility services rendered was $5,146.25. Before hearing, the affidavit of Ross Simpson was also filed, accompanied by the detailed accounting just mentioned. By the time the motion was heard all of the documentary evidence clearly reflected that the net balance claimed to be owed by appellant for all utility services furnished to him was the sum of $5,146.25.

Against the showing made by appellee, appellant relied on his own testimony on deposition and quotes the following from page 4 as having raised a genuine issue of fact as to payment:

'Q. [By counsel for appellee] And is it not true, then, assuming that the rates were valid--that is an assumption--that you do owe what the City contends you owe for steam heat?

'A. [By appellant] I am sure my bills was paid as my cancelled checks show.

'Q. For all three accounts?

'A. For all three accounts, so far as I know. I could have lost some checks in the fire.'

However, this does not complete the picture that was before the trial court when it ruled. All of the checks produced by appellant representing payments made to appel...