Healy v. Metropolitan Utilities Dist.

• Decision Date: 12 February 1954
• Docket Number: No. 33325,33325
• Citation: 158 Neb. 151,62 N.W.2d 543
• Parties: HEALY v. METROPOLITAN UTILITIES DIST. et al.
• Court: Nebraska Supreme Court

Page 543

62 N.W.2d 543

158 Neb. 151

HEALY v. METROPOLITAN UTILITIES DIST. et al.

No. 33325.

Supreme Court of Nebraska.

Feb. 12, 1954.

Syllabus by the Court.

1. In order to obtain a summary judgment the movant must show, first, that there is no genuine issue as to any material fact in the case and, second, that he is entitled to a judgment as a matter of law.

2. In considering a motion for summary judgment the court should view the evidence in the light most favorable to the party against whom it is directed.

3. The court examines the evidence on motion for summary judgment, not to decide any issue of fact presented, but to discover if any real issue of fact exists. If there is a genuine issue of fact to be determined, a summary judgment may not be properly entered.

4. The credibility of witnesses, who give evidence by affidavit or deposition, is not ordinarily material. Unless there is a dispute of fact, no reason exists ordinarily for attacking their credibility.

5. Where a party resisting a summary judgment intends to dispute facts by attacking the credibility of the witnesses of the movant, indicating a reasonable basis for such attack, a genuine issue of fact usually exists.

6. In cases where the evidence in a claimed fraudulant transaction rests exclusively within the knowledge of those seeking summary judgment it may be inequitable and unjust to grant summary judgment where the resisting party has no means to successfully meet the facts stated in the supporting affidavit. In such cases justice and fairness require a denial of a summary judgment.

7. A motion for a summary judgment is not a substitute for a motion to dismiss, a demurrer, or a judgment on the pleadings. It is a new procedure which may be used in certain cases where other procedural steps are not effective.

8. The summary judgment is effective and serves a separate useful purpose only when it can be used to pierce allegations in the pleadings and show that the facts are otherwise than as alleged.

9. Summary judgment was not intended, nor can it be used, to deprive a litigant of a fair and impartial trial. It is only where the situation exists that its terms imply and entitle the movant to judgment as a matter of law that it may be used to avoid an unnecessary trial.

Pilcher & Haney, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Wells, Martin & Lane, Finlayson, McKie & Kuhns, Swarr, May, Royce, Smith & Story, Eugene D. O'Sullivan, Warren C. Schrempp, Omaha, for appellees.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This action was commenced by plaintiff as a resident taxpayer of the city of Omaha and a user of the gas and water facilities of the Metropolitan Utilities District of Omaha, for himself and all others similarly situated, for the benefit of such district, and against such district, its directors and their respective surety companies, and Dana Van Dusen, to recover for attorney's fees paid to Van Dusen in excess of the maximum salary of $5,000 per year permitted by section 14-1020, R.S.1943. A motion for a summary judgment of dismissal was sustained and the plaintiff appeals.

The petition sets forth an action by which the plaintiff seeks to recover back for the benefit of the Metropolitan Utilities District the salaries paid to Van Dusen in excess of the maximum limit fixed by statute, from September 16, 1939, to March 25, 1947. The directors of the district and their respective bonding companies are made parties defendant. The district is made a defendant for the reason that the action is brought in its behalf. A demurrer to the petition by Van Dusen was sustained and the cause dismissed as to him for the reason that the action as to him was barred by the statute of limitations. No appeal was taken from this action by the trial court and, consequently, Van Dusen is no longer a defendant.

Various motions were filed by the remaining defendants, including the motion for a summary judgment of dismissal. No answer has been filed by the defendants. The only question here presented is whether the trial court erred in sustaining the motion for a summary judgment of dismissal under the circumstances shown.

The petition alleges in substance that Van Dusen was employed as legal counsel for the district from September 16, 1939, to March 25, 1947, and thereafter, said contract being oral, as plaintiff is informed and believes. A separate cause of action is stated against each director for the time he occupied such office, and his surety or sureties for the payments made in excess of the statutory limit but not exceeding the amount of the bond.

The motion for a summary judgment sets forth the contention that there is no genuine issue of fact as shown by the supporting affidavit of Walter S. Byrne, the general manager and secretary of the district, in which he states that the agreements with Van Dusen were in writing, that Van Dusen was paid only $5,000 as legal counsel, and that additional payments made to him were for his services as assistant to the general manager or as vice-general manager and assistant secretary. Resolutions and written contracts to this effect are incorporated verbatim into the affidavit. It is also asserted that the payroll records of the district show payment of compensation to Van Dusen in accordance with the official actions of the board of directors and the written contracts executed by the district and Van Dusen.

The motion for summary judgment was resisted by the plaintiff. In support of such resistance the affidavit of plaintiff was filed, wherein it was alleged that the actions of the board of directors and the contracts entered into were set up solely and wholly for the purpose of avoiding the statutory law of the state prohibiting a salary for legal counsel in excess of $5,000 per year, and thereby circumventing the meaning and legislative intent of the statute. The affidavit contains a recitation of the facts pertaining to the employment of Van Dusen and other legal counsel employed by the district, including the periods they were part-time and full-time attorneys for the district. The affidavit states that the district had a general manager and assistant manager other than Van Dusen, and that the designation of Van Dusen as assistant to the manager or vice-general manager and assistant secretary was for no other purpose than to evade, circumvent, and avoid the provisions of the statute relative to the employment of legal counsel by the district. The affidavit states that Van Dusen devoted all his time to legal matters, and that the proof is largely circumstantial and composed of admissions and inferences to be drawn from the direct evidence, the cumulative effect of which cannot be produced other than at a trial. It is further stated that to compel plaintiff to support his counter-affidavit with depositions would amount to oppression and operate to deprive plaintiff of evidence which lies wholly in the minds of the officers of the district.

The applicable part of the summary judgment statute provides: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Section 25-1332, R.S.Supp., 1953. It is plain that the movant in order to obtain a summary judgment must show, first, that there is no genuine issue as to any material fact in the case and, second, that he is entitled to a judgment as a matter of law. Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244; Dennis v. Berens, 156 Neb. 41, 54 N.W.2d 259; Palmer v. Capitol Life Ins. Co., 157 Neb. 760, 61 N.W.2d 396. The second provision is met if movant would be entitled to a directed verdict on the basis of the undisputed facts if the case were being tried to a jury. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. If the case is one tried to the court, it would seem that the same standard would apply if a motion for a summary judgment is made. 'The purpose of the rule is to provide against the vexation and delay which comes from the formal trial of cases in which there is not substantial issue of fact, and to permit expeditious disposition of cases of that kind.' Broderick Wood Products Co. v. United States, 10 Cir., 195 F.2d 433, 435. But the purpose of the rule does not include the depriving of a litigant of a formal trial where there is a genuine issue of fact to be determined. Blood v. Fleming, 10 Cir., 161...