Pauley v. Salmon River Lumber Co.

• Decision Date: 17 December 1953
• Docket Number: No. 8014,8014
• Citation: 74 Idaho 483,264 P.2d 466
• Parties: PAULEY v. SALMON RIVER LUMBER CO., Inc.
• Court: Idaho Supreme Court

Page 466

264 P.2d 466

74 Idaho 483

PAULEY v. SALMON RIVER LUMBER CO., Inc.

No. 8014.

Supreme Court of Idaho.

Dec. 17, 1953.

Maurice H. Greene, Raymond D. Givens, Boise, for appellant.

J. F. Martin, C. Ben Martin, Boise, for respondent.

PORTER, Chief Justice.

On December 11, 1950, appellant filed this action in the District Court of Ada County. By the complaint it is alleged that on February 9, 1946, one A. C. Solomon as General Manager of respondent specifically ordered and requested of the Bunting Tractor Co., Inc., certain parts, supplies and repairs to a model 50 caterpillar tractor; that such supplies and repairs were furnished by the said Bunting Tractor Co., Inc., to defendant; and that the agreed and stipulated value thereof was the sum of $3,410.26. It is further alleged that no part of said sum has been paid by the defendant except the sum of $500; that there is due, owing and unpaid the sum of $2,910.26; and that the claim of the Bunting Tractor Co., Inc., against defendant was duly assigned on September 2, 1949, to plaintiff. Plaintiff prayed judgment against defendant for the sum of $2,910.26 with interest thereon from the first day of July, 1946, at six percent per annum.

On May 10, 1951, respondent filed its answer wherein it denied each and every allegation contained in the complaint except as otherwise admitted, and alleged four separate affirmative defenses. By its first affirmative defense, respondent alleged that said complaint and the relief sought thereunder were barred by the statute of limitations under the provisions of Section 5-217, I.C. By its second affirmative defense respondent alleged that the plaintiff has no interest in the action and that the Bunting Tractor Co., Inc., if it did in fact make an assignment of the claim to the plaintiff, did not at the time of the assignment nor at any time thereafter have any interest in the alleged claim, and that the same had been duly paid by the Aetna Casualty and Surety Company.

For its third affirmative defense, respondent alleged that the Aetna Casualty and Surety Company ordered the supplies and repairs for the tractor as set out in the complaint of the plaintiff. That if the general manager of respondent did in truth and in fact order the parts, supplies and repairs for the tractor, he was acting as an accommodation for Wynn Mizner, the owner of said tractor and for the Aetna Casualty and Surety Company who had an insurance policy on said tractor and in no other capacity and for no other purpose, all of which was well known to the Bunting Tractor Co., Inc., Wynn Mizner and the Aetna Casualty and Surety Company.

For its fourth affirmative defense, respondent alleged that on February 9, 1946, and for a long time prior thereto, the tractor in question was the property of Wynn Mizner which was known to the Bunting Tractor Co., Inc., and the Aetna Casualty and Surety Company. That prior to February 9, 1946, respondent employed the said Wynn Mizner as superintendent of its logging operations and rented his said tractor to be used by the said Wynn Mizner in carrying out his work. That at the time of the employment of Mizner and the renting of his tractor, defendant offered to insure the tractor against loss or damage and refused to employ Mizner or rent the tractor unless said tractor was insured; that the said Wynn Mizner at said time represented to defendant that the tractor was insured against loss or damage by a policy with the Aetna Casualty and Surety Company; and that as part of the consideration for the employment of Mizner and the rental of the tractor, Mizner agreed to procure an endorsement from the surety company endorsing the defendant as a named insured under the policy and that Mizner would pay any additional premium if required for such endorsement. It is further alleged that at the time repair parts were ordered for the tractor, the Bunting Tractor Co., Inc., was advised the tractor was insured with the Aetna Casualty and Surety Company and that it supplied said repair parts for the benefit of Wynn Mizner and at all times had looked to the surety company and Wynn Mizner for the payment of its bill. And defendant further alleged upon information and belief that the surety company did actually pay to the Bunting Tractor Co., Inc., the sum of $2,910.26; that a dispute had arisen between Wynn Mizner, the Aetna Casualty and Surety Company and defendant with relation to the insurance policy and the payment of the bill of the Bunting Tractor Co., Inc., and that the same was settled by the surety company paying $2,910.26 to the Bunting Tractor Co., Inc., and defendant paying to Wynn Mizner a sum of money thereby settling and compromising all disputes and differences existing between the parties. Defendant prayed that plaintiff take nothing by his complaint.

On January 5, 1953, the cause was duly set for trial on February 16, 1953. On the date set for trial, appellant moved the court for an order vacating the setting and continuing the same for such time as the court deemed reasonable for the purpose of taking the deposition of W. A. Meisner (Wynn Mizner), of Sonora, California, for use by the plaintiff upon the trial. The motion was based upon the affidavit of Maurice H. Greene, one of the attorneys for plaintiff, and upon the affidavit of Ben Boice, M.D.

The affidavit of Maurice H. Greene shows that after the case was set for trial, negotiations were had with the attorneys for defendant with reference to taking the deposition of Meisner. It was agreed that the deposition should be taken in Stockton, California, on Saturday, February 7, 1953, at the hour of 10 o'clock a. m. That through one Harry C. Gray of Stockton, affiant contacted Meisner and arranged for Meisner to appear at Stockton for the taking of the deposition. That affiant made arrangements with one Herman Spalinger, a court reporter and notary public at Stockton, to take said deposition; for a law firm of Stockton to represent the plaintiff at the taking thereof; and that on February 4, 1953, affiant called said Meisner at his home in Sonora by telephone and was told by Meisner that he would be in Stockton at the time fixed for the taking of said deposition. That at about the hour of 10:30 a. m. on February 7, 1953, affiant received a long distance call from the attorney in Stockton representing the plaintiff and was informed by said attorney that he had just received a long distance call from Mrs. Cozort of Sonora who stated Meisner had been suddenly taken ill in the nighttime of February 6, 1953, was under a doctor's care and was physically unable to attend the taking of said deposition. The affidavit alleges the testimony of Meisner is essential on the part of plaintiff in the trial of the cause; and sets out the facts to which Meisner would substantially testify, the substance of such testimony being a denial of the third and fourth affirmative defenses of defendant.

The affidavit of Ben Boice, M.D. was dated February 12, 1953. It was to the effect that he is a duly licensed physician and surgeon in the State of California and practicing in the City of Sonora; that since February 8, 1953, he had attended a patient, W. A. Meisner, who since said date had been continuously confined to his bed suffering from pneumonia and that it is not possible for Mr. Meisner to leave his bed and make any trip at this time and that affiant is not able to prognose when Mr. Meisner's health will be such as to permit him to make a trip to Boise, Idaho.

The motion for continuance was by the trial court denied. And plaintiff having refused to proceed with the trial in the absence of the testimony of W. A. Meisner, upon motion of the defendant, the court entered judgment of dismissal of the action for lack of prosecution.

Thereafter on February 26, 1953, appellant filed a motion to set aside the judgment and reinstate the cause under the provisions of Section 5-905, I.C., upon the ground of inadvertence and excusable neglect in that at the time of the dismissal of the action appellant was unable to furnish the court an affidavit disclosing the true facts concerning his inability to secure the testimony of W. A. Meisner. Said motion was based upon the records and files in the cause and the new affidavit of Dr. Ben Boice. The new affidavit of Dr. Boice was dated February 18, 1953, and merely added to his first affidavit that it was his professional opinion Meisner had been seriously ill for at least a day or two prior to February 8 1953, and would not have been able on February 7, 1953, to travel from Sonora to Stockton, California, a distance of more than 65 miles.

Thereafter supplemental affidavits by W. A. Meisner and Lucille Cozort were filed in support of the motion. The affidavit of Meisner dated March 8, 1953, shows that on the evening of February 6, 1953, he became violently ill and requested his landlady, Mrs. Cozort, to call the doctor retained by his employer. That Mrs. Cozort attempted to contact such doctor but was unable to reach him...