Scott v. Robson

Citation36 St.Rep. 1273,597 P.2d 1150,182 Mont. 528
Decision Date10 August 1979
Docket NumberNo. 14606,14606
PartiesDonald L. SCOTT, Plaintiff and Appellant, v. Gary ROBSON, Defendant and Respondent.
CourtUnited States State Supreme Court of Montana

Allen L. McAlear (argued), Bozeman, for plaintiff and appellant.

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, L. Randall Bishop (argued), Billings, for defendant and respondent.

HARRISON, Justice.

This is an appeal from a summary judgment in the District Court of the Fourteenth Judicial District, in and for the County of Musselshell. The case involves an action to recover for personal injury resulting from some logs falling on a workman. Following the taking of plaintiff's deposition, defendant moved for a summary judgment, which motion was eventually granted. Plaintiff moved to set aside, vacate or modify the summary judgment, which was denied, and plaintiff appeals.

Plaintiff Scott was injured while working with defendant Gary Robson and William Yount, Jr., on a logging operation. The men were logging a specified portion of timber growing on the defendant's ranch. Plaintiff and Yount had been hired by Robson. Scott was to fall the trees, cut the limbs from them, and saw them into lengths capable of being hauled to an area sawmill. Yount's job was to stack the logs hauled by Scott into decks into which they were to be loads. The loading and the hauling was done exclusively by defendant Robson.

Deposition testimony established that plaintiff Scott's principal occupation for some 20 years had been that of a timber sawyer. In the late fall of 1976 he approached defendant Robson seeking work because the local logging businesses had been closed due to inclement winter weather. Prior to that time he had been working at a sawmill operated by Mr. Yount, Sr. The deposition testimony indicated that Scott would use his own judgment in determining the merchantable logs and the manner in which they would be cut, would use his own saw and other equipment, and would purchase the gasoline and oil for the saw. It was further agreed that Scott would be paid strictly on a percentage of the logs cut, receiving $10 per thousand board feet. In addition Yount was to receive $10 per thousand board feet for the work he did in skidding and stacking the logs. The deposition further indicates that there was no withholding of any social security payments or federal income tax in the checks received by Scott. Scott determined his own working hours. The deposition indicated that Robson described the area to be logged, leaving the process of logs and the control of his movements exclusively to Scott. Scott indicated that at the time of the agreement his relationship with Robson was as "contractors".

On March 15, 1977, Yount and Scott were nearby as Robson loaded the final truck of a day's work. Scott had seen a number of loads of logs go out and testified that he noticed nothing unusual about this particular load. He further testified that he knew two or three logs had rolled off during the loading process, but did not feel this added to the possible danger of the logs rolling off after they had been reloaded and had settled some five or more minutes. According to Scott every indication was that the load was a good, tight load of logs, no different from any others which Robson had prepared, and specifically that there were no crooked logs or anything that would have caused the load to have been unstable. He further testified that in his expert opinion these logs were loaded in a customary manner of the logging industry.

Following the loading the truck and the logs sat motionless for at least five minutes while Robson parked his tractor and prepared to bind the load with chains used for that purpose. After parking and getting off the tractor, Robson took the chains over to the load and threw one of the chains over the top. Scott stepped out of his pickup, and without being asked to do so, walked over to hook the chain on the side of the trailer opposite Robson. As he bent to hook the chain, some of the top logs rolled off the truck. Yount, who was nearby, yelled a warning but Scott was unable to react in time and was hit by the falling logs and injured.

Following the entry of summary judgment, plaintiff sought to depose an additional witness. Defendant filed a motion to quash the taking of the deposition, which was denied, and the deposition was taken to perpetuate testimony under Rule 27(b), M.R.Civ.P. In addition, plaintiff filed a letter from H. B. Stevens, Supervisor of the Underwriting Division, State Compensation Insurance Fund, Division of Workers' Compensation, which was dated August 24, 1978, concerning the regulations of the Department on the stacking of logs.

While plaintiff-appellant sets forth five issues for consideration by this Court, we find that the issues can be properly restated in the following manner:

1. Whether appellant's opening brief relies, in part, upon materials not properly included in the record which should be disregarded in deciding this appeal.

2. Whether the District Court properly granted summary judgment for respondent where appellant's testimony established that respondent did not breach any duty owed appellant.

3. Whether the appellant was, as he believes, an independent contractor while working for respondent.

The first issue concerns the materials inserted into the record by appellant after summary judgment. The order granting summary judgment on the merits was entered on August 11, 1978. Judgment for respondent was entered upon the official docket August 16, 1978. On the same day, appellant's counsel prepared a notice for the taking of the deposition of William Yount, Jr., of Roundup, Montana. This notice was received by respondent's counsel on August 17, and upon receiving this notice respondent submitted a motion to quash along with a notice of a hearing on the motion which was set for August 23, 1978.

Respondent's motion to quash argued that, a judgment having been entered in the case, further discovery was inappropriate unless specifically granted under Rule 27(b), M.R.Civ.P., which states:

"(b) PENDING APPEAL. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, The district court in which the judgment was rendered May allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken . . ." (Emphasis added.)

Here it is noted by respondent that the only purpose of an order granting a leave under Rule 27(b) is to preserve testimony which may be lost in the event that the relief requested on appeal be granted and the case once again heard by the District Court. Recently, in Ash v. Cort (3rd Cir. 1975), 512 F.2d 909, a case reversed on other grounds, 442 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, the United States Court of Appeals upheld the decision of the District Court denying a Rule 27(b) motion to perpetuate testimony pending appeal. In discussing the rule, the Court stated:

"We reiterate that Rule 27 is not a substitute for discovery. It is available in special circumstances to preserve testimony which could otherwise be lost . . . The Rule states that the trial court 'may allow the taking of the depositions of witnesses to perpetuate their testimony . . . if the court finds that the perpetuation of the testimony is Proper to avoid a failure or delay of justice . . .'

". . .

"Without some showing that continued delay in granting discovery is likely to result in a loss of evidence, the assertion that no discovery has yet taken place is plainly irrelevant to Rule 27. Appellant makes almost no attempt to show why the requested testimony must be perpetuated. In conclusory terms, appellant's brief merely states: 'There exists a substantial risk that testimonial evidence will become unavailable if discovery is further postponed. It is probable that the officers and directors having first hand knowledge are over fifty years of age. They are all senior officers of a large industrial corporation. One director has already died. Memories may fade.'

"Although age may be a relevant factor in showing that testimony must be perpetuated to avoid loss, we simply cannot agree that these conclusory remarks in any way show that evidence is likely to be lost while the appeal is pending.

"Since plaintiff failed to assert reasons why it was necessary to perpetuate this testimony, we find no abuse of discretion in the trial court's denial of the motion."

We find that appellant's counsel made no attempt to comply with Rule 27(b) by requesting leave of court to take the deposition of William Yount, Jr. While the motion to perpetuate testimony was later submitted, no facts were presented as required by the rule to establish that the perpetuation of the testimony of Yount was necessary to avoid the failure or delay of justice. Sufficient opportunity for discovery and examination of witnesses was provided to appellant's counsel while respondent's motion for summary judgment was pending. Here, appellant's failure to do so indicates his willingness to stand on the evidence presented at the summary judgment hearing. We find appellant's actions improper and that he cannot supplement an inadequate record on appeal by...

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