Rathbun v. Department of Highways
| Decision Date | 04 May 1972 |
| Docket Number | No. 10859,10859 |
| Citation | 94 Idaho 700,496 P.2d 937 |
| Parties | Berneal RATHBUN et al., Plaintiffs-Appellants, v. The DEPARTMENT OF HIGHWAYS, a civil department of the State of Idaho, et al., Defendants-Respondents. Wayne L. RATHBUN et al., Plaintiffs-Appellants. v. The DEPARTMENT OF HIGHWAYS, a civil department of the State of Idaho, et al., Defendants-Respondents. |
| Court | Idaho Supreme Court |
James J. May, Twin Falls, for appellants.
Faber F. Tway, Chief Legal Counsel, Department of Highways, Boise, for respondents.
This is an appeal from a summary judgment in favor of defendants-respondents in a case wherein plaintiffs-appellants had brought suit for their personal injuries and the wrongful death of their husband and father.
On November 9, 1968 a car driven by Floyd Rathbun struck a large boulder on U. S. Highway 30. The driver of the vehicle was killed and passengers in the car were injured. Plaintiffs and appellants herein are in two groups. The first is the immediate family of Floyd Rathbun suing for their personal injuries as well as the wrongful death of Floyd Rathbun. The second group is Wayne Rathbun suing for personal injuries to his wife and his children. The defendants- respondents herein are the Department of Highways and various administrators connected therewith.
During the pendency of the appeal in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), plaintiffs-appellants unsuccessfully attempted to stipulate with defendants-respondents to consolidate this case with Smith v. State, supra, for hearing. Oral arguments in Smith v. State, were heard by this Court on September 18, 1969.
Failing in their attempt to obtain a consolidation of this case with Smith v. State, a stipulation was signed and filed on September 24, 1969. That stipulation provided that any further action in the instant case would be held in abeyance until the Supreme Court reached a decision in Smith v. State, et al. The stipulation further provided that the decision in Smith v. State should be applied to determine the issues in the instant case. After the decision in Smith v. State on August 5, 1970, the defendants-respondents herein moved for a dismissal, which motion was treated as one for summary judgment and granted on November 12, 1970. The summary judgment was apparently based on the ruling in Smith v. State that, as to other than the actual plaintiffs in Smith v. State, et al., the abolition of sovereign immunity was limited to prospective application. The prospective application date (March 20, 1971) was later in time than the date that the cause of action arose in the instant case.
Plaintiff-appellants' only assignment of error is that the district court erred as a matter of law in granting summary judgment in favor of defendants-respondents.
In Smith v. State, this court abolished the doctrine of sovereign immunity in a case similar to that at bar, but that holding was prospective only, and was to govern causes of action:
'arising on or after 60 days subsequent to the adjournment of the First Regular Session of the Forty-First Idaho State Legislature unless legislation in enacted at that session with respect to the abolition of the sovereign immunity of the state.' 93 Idaho 795 at 808, 473 P.2d at 950.
Plaintiffs' argument is two-fold. They ask first that we re-examine our decision in Smith as to its prospective application. They argue that the abolition of sovereign immunity should be applied retroactively and not prospectively. The reasons for the prospective application of the abolition of sovereign immunity are adequately and substantially set forth in Smith and need not be reiterated here. Plaintiffs-appellants advance no authority which persuades us to reach a conclusion other than that set forth in Smith.
Plaintiffs-appellants...
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Newlan v. State
...the absence of legislation. That holding was reiterated in Dawson v. Olson, 94 Idaho 636, 496 P.2d 97 (1972); Rathbun v. Department of Highways, 94 Idaho 700, 496 P.2d 937 (1972); Sims v. State, 94 Idaho 801, 498 P.2d 1274 In 1971 in response to Smith the Idaho Legislature passed a comprehe......
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Black v. Peter Kiewit Sons' Co., 10912
...here. The summary judgment in favor of the respondent Idaho Department of Highways was properly granted. See Rathbun v. Department of Highways, 94 Idaho 700, 496 P.2d 937 (1972); Dawson v. Olson, Judgment affirmed. Costs to respondents. McQUADE, C. J., SHEPARD and BAKES, JJ., and THOMAS, Di......
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Munson v. State, Dept. of Highways
...cited Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970); Dawson v. Olson, 94 Idaho 636, 496 P.2d 97 (1972); Rathbun v. Department of Highways, 94 Idaho 700, 496 P.2d 937 (1973); Black v. Peter Kiewit Sons' Co., 94 Idaho 755, 497 P.2d 1056 (1972); Sims v. State of Idaho, 94 Idaho 801, 498 P.......
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Walker v. Idaho Bd. of Highway Directors
...make it clear that Smith did not apply retroactively. Dawson v. Olson, 94 Idaho 636, 496 P.2d 97 (1972); Rathbun v. Department of Highways, 94 Idaho 700, 496 P.2d 937 (1972); Black v. Peter Kiewit Sons' Co., 94 Idaho 755, 497 P.2d 1056 (1972). Appellants' action for fraudulent misrepresenta......