Northrip v. Montgomery Ward & Co.

Decision Date12 November 1974
Docket NumberNo. 45677,45677
Citation529 P.2d 489,1974 OK 142
PartiesJ. E. NORTHRIP, Appellant, v. MONTGOMERY WARD & CO., a foreign corporation, et al., Appellees.
CourtOklahoma Supreme Court

Syllabus by the Court

1. Parties may not present new issues, arguments and authorities on appeal which if raised when a summary judgment under 12, Ch. 2, App., Rule 13 was granted in the trial court would have presented a substantial issue of material fact.

2. Summary proceedings on motion where facts are not in controversy are applicable to all civil cases where no substantial controversy exists as to material facts or issues.

3. Every civil case subject to summary proceedings must be bottomed and considered upon its own peculiar pleadings, affidavits, exhibits, admissions, depositions and the like, and if reasonable men in the exercise of fair and impartial judgment might reach different conclusions upon consideration of same, summary relief must be denied.

4. On motion for summary judgment under 12, Ch. 2, App., Rule 13, all inferences and conclusions to be drawn from the underlying facts contained in such materials as affidavits, admissions, depositions, pleadings, exhibits and the like, must be viewed in the light most favorable to the party opposing the motion.

Appeal from District Court, Atoka County; Lavern Fishel, Trial Judge.

Action against manufacturers and retailer for recovery of personal property damages allegedly resulting from an explosion of a wet-cell storage battery. The trial court sustained Appellees' motions for summary judgment and Appellant appeals.

Reversed and remanded.

Michael G. Smith, Ada, for appellant.

Frank H. Jaques, Ada, for appellee, Montgomery Ward & Co.

Richard L. Carpenter, Jr., Sanders, McElroy & Carpenter, Tulsa, for appellee, ESB, Inc.

Maurice E. Lampton, Sapulpa, for appellee, Gould, Inc.

DOOLIN, Justice.

This matter is before us from an order sustaining motions for summary judgment in favor of the Appellees (Defendants below). We feel called upon to first decide: If Appellees (Defendants below) may present new issues, arguments and authorities to sustain the trial court's granting of summary judgment which, if raised at time of hearing motions, would have presented a material fact and issue for determination.

We hold they cannot.

A recital of the pleadings and facts is necessary. Plaintiff alleged that he purchased a Ward's Riverside battery from Montgomery Ward (Ward's) in Ada, Oklahoma, in October of 1968, thereafter installing same in his International bulldozer. On or about May 1, 1969, while the dozer was being operated, the battery cables became loose; he then stopped operation, left the motor running, took a pair of ordinary pliers and commenced to adjust the battery cables. He alleged that as he tapped lightly on the cables the battery exploded, causing a fire that destroyed and damaged his equipment to the extent of $4,765.22. His allegation that the explosion was the proximate cause of the fire followed and then Plaintiff alleged that Riverside was a Ward's brand name and that the battery was manufactured for Ward's by the Defendants Gould, Inc., or ESB, Inc., and that Ward's and either Gould or ESB, whichever was the manufacturer, had impliedly or expressly warranted that the battery was free from defects in materials and workmanship and was fit and safe for proper use. He then followed with an allegation of tort liability (negligence) for the breach of a duty owed in marketing a dangerous battery or failing to use the highest standards of workmanship and quality materials, etc. He finally alleged that Ward's and the manufacturer of the battery were liable under the theory of strict liability in tort. His prayer was in the amount set out aforesaid and that the parties Defendant should be required to determine among themselves or to inform him as to who had made the battery.

Various special appearances, motions, demurrers, requests for admissions, etc., followed and in due course answers were filed separately by Gould in the form of a general denial; by ESB in the form of general denial, contributory negligence, failure to notify under 12A O.S.1971, § 2--207(2)(c); and, by Ward's in the form of a general denial, contributory negligence, misuse of the product, and unavoidable casualty. Ward's also filed a cross-petition against ESB, Inc., which it alleged had manufactured the battery, seeking judgment against ESB if judgment was rendered against Ward's for any sum.

Before and after the answers were filed, interrogatories, depositions and requests for admissions were made by the parties Defendant, and in May of 1971 all of the Defendants filed motions for summary judgment which were heard by the trial court on May 21, 1971. They were taken under advisement, and ruled upon on March 22, 1972--when the trial court sustained all Defendants' motions for summary judgment.

Plaintiff thereafter made timely appeal.

A search of the record indicates that at no time prior to the hearing or ruling on Defendants' motions for summary judgment was an attack made upon the parties in interest or the substantial interest of the Plaintiff. It appears that after the trial court's sustaining all Defendants' motions for summary judgment and after the Appellant/Plaintiff had filed his petition in error and perfected his appeal in this Court on April 21, 1972, and after the Appellant had filed his brief on July 25, 1972, the Appellee/Defendant ESB filed with the trial court a motion to perpetuate testimony under 12 O.S.1971, § 538.7. On September 12, 1972, Appellee/Defendant ESB's motion to perpetuate testimony was sustained and thereafter interrogatories were submitted to the Appellant/Plaintiff under 12 O.S.1971, § 549. On October 19, 1972, the Appellant admitted he had been paid by his fire insurance carrier at least the sum of $4,765.22, the amount of his prayer, and that such payment was made prior to filing his petition.

On November 3, 1972, the Appellees ESB and Ward's filed motions to dismiss in this Court alleging that the Appellant's damages of $4,765.22 had been paid to Appellant by his fire insurance carrier and that under 12 O.S.1971, § 78 1 Appellant/Plaintiff had no pecuniary or substantial interest in the outcome of the litigation and was not an aggrieved party under such statute.

The motions to dismiss filed by Appellees Ward's and ESB lead us to the consideration of 12 O.S.1971, § 221 2--the real party in interest statute, and 12 O.S.1971, § 235 3--which allows an action to be conducted upon the death or transfer of the original party in the name of his assignee or in the name of the original party as trustee for the real party in interest.

Appellant, upon receipt of the motions to dismiss as filed in this Court by Ward's and ESB, took two actions. On November 15, 1972, he filed in this Court a motion to increase his prayer from $4,765.22 to $4,800.22, alleging the additional $35.00 was the cost of replacing the exploded battery; and, on November 27, 1972, he responded to the motions to dismiss alleging that Ward's and ESB had waived their right to raise the issue of parties and their substantial rights by not presenting the issue to the trial court by demurrer, answer, or other pleading, including motions for summary judgment.

When we recently dealt with Rule 13, 12 O.S. Ch. 2, App. 4 in Perry v. Green, 468 P.2d 483, 489 (Okl.1970) we stated:

'A motion for summary judgment, under Rule 13 of this court's uniform rules for the guidance of the district, superior and common pleas courts of this state, as adopted on March 15, 1965, should be denied if the facts concerning Any issue raised by the pleadings, as set forth in the depositions, admissions, answers to interrogatories, and affidavits on file in the case when such motion is filed, and as set forth in affidavits thereafter filed in opposition to such motion and meeting the requirements of said Rule 13, are conflicting, or if reasonable men, in the exercise of a fair and impartial judgment, might reach different conclusions from undisputed facts concerning any issue as set forth in such instruments.' (Emphasis supplied.)

We affirm this rule and in so doing, point out that the motion for (summary judgment where facts are controverted should be denied 'if the facts concerning Any issued raised by the pleadings' are conflicting or disputed. The issues argued by the Appellees here had not been raised in the trial court, although nothing precluded the Appellees from testing the necessary parties or the interest of said parties in the recovery at the time of the motions for summary judgment. We believe we should limit the inquiry on appeal to 'any issue raised by the pleadings', Perry v. Green, supra, not what could have potentially been an issue and might have been raised by the Appellee. If all issues of the parties in this case and their substantial rights had been presented at the trial level, it becomes clear that an issue which was a material one then existed and until the same had been properly dealt with, it would be a bar to granting summary judgment. This interpretation we believe is in harmony with the Federal Procedural Rules (see Rule 56, 28 U.S.C.A.) and 6 Moore's Federal Practice, 2nd Edition, 2051, 56.03. The discussion in 6 Moore's Federal Practice, supra, indicates that the Federal courts have held that a motion for summary judgment goes to the merits and is in the nature of a bar, not an abatement. Certainly an order granting summary judgment against this Appellant has not barred the Appellant's insurance carrier from filing a cause of action. In Shafer v. Reo Motors,205 F.2d 685 (3rd Cir. CA) that court observed:

'The ruling on motion for summary judgment is to be made on record the parties have actually presented, not on one potentially possible.'

We have held many times that the Supreme Court is confined to issues presented by the record. See: Ajax Contractors, Inc. v. Myatt, 424 P.2d 30 (Okl., 1...

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