Petricevich v. Salmon River Canal Co.

• Decision Date: 25 March 1969
• Docket Number: No. 10239,10239
• Citation: Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (Idaho 1969)
• Parties: Vasilija PETRICEVICH and Dusanka Petricevich, husband and wife, Plaintiffs-Appellants, v. SALMON RIVER CANAL COMPANY, Inc., an Idaho Corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 362

452 P.2d 362

92 Idaho 865

Vasilija PETRICEVICH and Dusanka Petricevich, husband and wife, Plaintiffs-Appellants, v.SALMON RIVER CANAL COMPANY, Inc., an Idaho Corporation, Defendant-Respondent.

No. 10239.

Supreme Court of Idaho.

March 25, 1969.

Kramer, Plankey & Meehl, Twin Falls, for appellants.

Coughlan, Imhoff, Christensen & Lynch, Boise, for respondent.

McFADDEN, Chief Justice.

This action was instituted by Mr. and Mrs. Petricevich, the plaintiffs-appellants, for damages sustained in an accident which occurred when their automobile in which they and their children were riding struck a bull, the property of Heber Loughmiller.

The facts involved in this appeal are as follows:

On August 9, 1964the plaintiffs(appellants) and their three minor children were enroute to Yellowstone Park on a vacation trip from their home in Oakland, California.About 9:00 o'clock p. m. the appellants were a few miles west of Twin Falls and about 3 1/2 miles north of the village of Hollister in Twin Falls County when they collided with a bull wandering on U.S. Highway 93.The accident occurred in a herd district, within which, under I.C. § 25-2405, cattle are required to be confined within a fenced enclosure.Although Mr. Heber Loghmiller, the owner of the bull, maintained a wire fence around the perimeter of his land, the bull had escaped from the pasture through a hole in the fence and reached the highway where the accident occurred.

In the vicinity of the accident, the defendantSalmon River Canal Company, respondent herein, as a part of its irrigation water delivery system, maintains a delivery ditch which crosses U.S. Highway 93 and farm lands owned by Loughmiller.The Loughmiller property is situated east of the highway, and is enclosed by a fence, one portion of which establishes the boundary between the highway and Loughmiller's property.The Loughmiller bull had been pastured within this enclosure sometime prior to the accident.

Where the Loughmiller fence crosses respondent's ditch, east of the highway, the ditch is seven to eight feet in width, with the bottom of the ditch about four feet below the bottom of the fence.Mr. Loughmiller, as a part of the enclosure of his property, had installed a railroad tie eight to ten feet in width between two fence posts erected on the ditch bank.This railroad tie was 18 to 24 inches above the bottom of the canal and was attached to the bottom of the fence by anchor wires.This railroad tie was an affective barrier to the escape of cattle through the ditch and under the fence.

Mr. Loughmiller, by deposition, testified that the day following the accident, he inspected his fence and found it to be in good condition except at the point where it crossed the irrigation ditch.He observed that at this point the railroad tie had been burned, destroying it as a barrier to the escape of cattle.He also observed that weeds had been raked into a pile and burned immediately adjacent to the fence and that there were bull tracks in the bottom of the dry canal leading out toward the highway.He stated in his deposition and affidavit that in his opinion this was the only point at which the bull could have escaped from its pasture.

Initially the appellants brought this action only against Heber Loughmiller, alleging that he had negligently allowed his bull to roam at large upon the highway in a herd district.Later the respondentSalmon River Canal Company was also joined as a defendant.Prior to trial, however, the court granted a motion dismissing Loughmiller from the action, leaving the respondentCanal Company as the sole defendant.

The appellants' last amended complaint alleged that the Company negligently kindled the fire which consumed the railroad tie, allowing the bull to escape from its pasture.The complaint also alleged that regardless of whether the respondent was negligent in starting or controlling the fire, it was nevertheless negligent in neither repairing the fence nor warning Mr. Loughmiller of the damage prior to the accident.The respondent answered the complaint on April 5, 1967, denying that it started the fire and raising as an affirmative defense the statute of limitations (I.C. § 5-219(4)).

Following the taking of numerous interrogatories, depositions, and affidavits by both sides, on August 29, 1967the respondent moved for summary judgment.The motion was supported by the affidavit of Mr. Clarence Tanner, a company employee who was the ditch rider on the ditch in question, denying that the respondent started any fire.The appellants responded to the motion with the affidavit and deposition of Mr. Heber Loughmiller in which Mr. Loughmiller testified to the following: That the respondent is in charge of maintaining the canal, which job includes the burning of weeds; That on the day following the accident Mr. Loughmiller found that his fence had been burned at the point where it crossed the canal; That the resultant hole in the fence is the only spot at which the bull could have escaped: That he found a raked pile of leaves which had been burned next to the fence; That although he did not see the respondent burn any leaves during the summer, he did see respondent's employees burn weeds early in the spring; That in his opinion it is unlikely that the fire was started by lightning, tourists, or his own employees; and that on several other occasions the respondent had burned his fences and fences belonging to his neighbors.

On the basis of the affidavits, depositions, pleadings and interrogatories, the district court granted the respondent's motion for summary judgment.In its memorandum opinion the trial court stated:

'My opinion in this regard is based upon two apparent weaknesses in plaintiffs' case only one of which seems to be recognized by the plaintiffs.First, is there any showing, other than pure speculation or conjecture, that the Salmon River Canal Company set a fire that eventually reached and consumed the railroad tie?I do not believe that any reasonable person could reach such a conclusion based upon the foregoing facts.SeeGray v. Lonyear (sic)(N.M.1967)(78 N.M. 161)429 P.2d 359 * * * But even if we concede that I am wrong and the plaintiffs are right in this regard, there is still the second weakness to overcome, namely what facts are presently before this Court from which we can reach the legal conclusion that the Salmon River Canal Company was negligent in kindling the fire in the first place or managing the fire after it was kindled?'

The appellants appealed from the summary judgment and order in respondents' favor and from the order denying their motion to reconsider, assigning as error the trial court's determination that there are no triable issues of fact in the case and that there is no evidence tending to establish that the respondent started the fire in question.The appellants contend that there is a genuine issue concerning whether the respondent started the fire and that the summary judgment was therefore improper.

The appellants' claim is based upon their assertion that the respondent was responsible for the fire which destroyed Mr. Loughmiller's fence.In the absence of such a showing, as pointed out by the trial court, there is no basis upon which the respondent could be held liable to the appellants for the injuries they sustained.The first question to be considered here, then, is whether the district court erred in deciding that there was no genuine issue of material fact as to whether or not respondent was responsible for the fire.It there is such an issue, or if resolution of the controversy by the trial court depended upon the credibility of the witnesses or the weight to be given to their testimony, the summary judgment was improper.Merrill v. Duffy Reed Constr. Co., 82 Idaho 410, 353 P.2d 657(1960);Steele v. Nagel, 89 Idaho 522, 406 P.2d 805(1965);Anderson v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 494, 365 P.2d 965(1961);In re Killgore's Estate, 84 Idaho 226370 P.2d 512(1962).

The allegations of the complaint and the denials of the answer present a question of fact as to the cause of the fire.The appellants allege that the respondents started it, and the respondents deny it.But a trial court is not limited to a consideration of the pleadings in determining whether a genuine issue of material fact exists.Upon a motion for summary judgment all affidavits, depositions and interrogatories are to be considered in conjunction with the pleadings.I.R.C.P. 56(c).Such material can be used to pierce the formal allegations of the pleadings and to show that what appears on the face of the pleadings alone to be a genuine issue of fact is in reality not a genuine issue at all.6 Moore's Federal Practice, § 56.15(1.-02), p. 2291(2d ed. 1966).See alsoTri-State Nat. Bank v. Western Gateway Storage Co.,92 Idaho 543, 447 P.2d 409(1968);Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110, 45 A.L.R. 1041(1926);3 Barron & Holtzoff, Federal Practice and Procedure, § 1235.1, p. 153 (Rules ed. 1958);Wright, Federal Courts, § 99, p. 387(1963).

The burden is at all times upon the moving party to prove the absence of a genuine issue of material fact.Christiansen v. Rumsey, 91 Idaho 684, 429 P.2d 416(1967).6 Moore's Federal Practice, § 56.15 (3), pp. 2335-2336 (2d ed. 1966).Additionally this court has consistently held that upon a motion for summary judgment all doubts are resolved against the moving party.Merrill v. Duffy Reed Constr. Co., 82 Idaho 410, 353 P.2d 657(1960);In re Killgore's Estate, 84 Idaho 226, 370 P.2d 512(1962);Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604(1965);Otts v. Brough, 90 Idaho 124, 409 P.2d 95(1965);Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768(1966).

In the present casethe respondent, by the affidavit of its employee Clarence Tanner, unequivocally denied starting the fire in question.Under such circumstances, it was incumbent upon the appellants...