Steele v. Nagel

• Decision Date: 20 October 1965
• Docket Number: No. 9521,9521
• Citation: 406 P.2d 805,89 Idaho 522
• Parties: Dannard STEELE, also known as Dan Steele, Plaintiff-Appellant. v. John NAGEL, and Louisa Nagel, a widow dba Nagel Beverage Co., and Virgil Clampett, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 805

406 P.2d 805

89 Idaho 522

Dannard STEELE, also known as Dan Steele, Plaintiff-Appellant. v. John NAGEL, and Louisa Nagel, a widow dba Nagel Beverage Co., and Virgil Clampett, Defendants-Respondents.

No. 9521.

Supreme Court of Idaho.

Oct. 20, 1965.

C. H. Higer, Emmett, Marcus, Leggat & Marcus, Boise, for appellant.

Elam, Burke, Jeppesen & Evans, Boise, for respondents.

McQUADE, Chief Justice.

This is an action for personal injuries and damages to an automobile brought by appellant Dannard Steele against respondents Virgil Clampett and John Nagel and Louisa Nagel, doing business as Nagel Beverage Company, hereinafter referred to as Nagel. From a summary judgment entered in favor of Nagel, this appeal is brought. In support of and opposed to the motion for summary judgment were three affidavits and the depositions of Steele and Clampett. From these documents the following facts may be determined.

On August 28, 1961, at about 6 p. m. Steele was driving his automobile in an easterly direction on Wylie Lane in Boise, Idaho. At a point just west of the intersection of Wylie Lane and State Highway 44, Steele collided with a pickup truck driven by Clampett and owned by Nagel. Clampett was employed by Nagel as a bottle sorter.

At the time of the accident and prior thereto, Clampett was accompanied by Jim Tyner, also employed by Nagel, and two female acquaintances. The girls had been visiting at the Nagel Beverage Company plant in Boise shortly prior to 5 p. m. At about 5 p. m. on this particular day, after finishing his work, Clampett, in the company of Tyner, took the pickup truck parked on Nagel's property for the purpose of driving the two girls home. After picking up the girls, the four proceeded to the residence of Clampett, where he changed from his working clothes. Clampett and Tyner then proceeded to take the girls to their residence on Wylie Lane.

Clampett turned left off Highway 44 onto Wylie Lane in a westerly direction while operating the truck at a high rate of speed. The truck struck a guardrail and then bounced over into the left lane of traffic, striking Steele's automobile.

The next morning Clampett saw Nagel and thereafter continued to work for Nagel and was still working for him when Clampett's deposition was taken December 10, 1963.

Nagel owned 10 or 11 trucks, which were kept in Nagel's parking lot adjoining the bottling plant. According to Clampett's deposition, the keys were kept in the trucks at all times, which fact was common knowledge to all employees. On the sides of these trucks were words indicating they were owned by Nagel.

Though Clampett was primarily a bottle sorter, he had been called upon in the past to make deliveries for Nagel, at which time Mr. Nagel would accompany Clampett. On each occasion the same pickup truck had been used. Clampett had never driven any of the trucks alone for his own personal reasons. Occasionally, however, Nagel would drive Clampett on the latter's personal errands because Clampett did not own any vehicular means of transportation. Clampett stated that just prior to taking the truck on the particular occasion in question, he did not ask anyone's permission but did tell a Nagel truck loader, Roger Tomlinson to tell Mr. Nagel that Clampett was going to use the truck.

The affidavits of one Johnnie Purvis and one Jack Earl allege that Clampett had been seen on prior occasions driving the truck on Highway 44 and on Wylie Lane near the scene of the accident. Clampett stated that he had never driven the pickup truck on Wylie Lane prior to the accident on August 28.

This action was commenced on January 9, 1963. In his complaint Steele alleges that Clampett was operating the pickup truck owned by Nagel 'with the knowledge and consent of defendants, John Nagel and Louisa Nagel, and was acting as an employee, agent and servant of said defendants and within the scope of his employment.'

By way of answer Nagel denied:

'* * * that Virgil Clampitt operated the Nagel Beverage Co.'s vehicle with the consent and knowledge of said defendant or at the time and place of the accident he was acting in any way on their behalf or as an employee, agent, or servant of the defendants and state the facts to be that he had taken the truck of the defendant without their permission and without their knowledge after business hours; * * *.'

In his answer Nagel demanded a jury trial.

Respondent Nagel filed a motion for summary judgment. Appellant then moved to strike the motion for summary judgment on the ground that there is no statutory provision in Idaho for the granting of the relief prayed for and for the further reason that the Supreme Court is without constitutional authority to establish any procedure for determination of rights other than those which are expressly granted by the legislature in the adjudication of rights between litigants. The motion to strike the motion for summary judgment was denied and the summary judgment was granted. Appellant has appealed from that judgment.

Appellant enumerates three assignments of error which can be grouped into two major contentions. The first is the denial of appellant's motion to strike respondents' motion for summary judgment. The second is the granting of respondents' motion for summary judgment.

As to the first contention, this exact issue has been decided in the recent Idaho cases of Allen Steel Supply Co. v. Bradley, Idaho, 402 P.2d 394 (1965); and R. E. W. Const. Co. v. District Court of Third Jud. Dist., 88 Idaho 426, 400 P.2d 390 (1965). The motion to strike motion for summary judgment was properly denied.

Appellant's second contention is based upon Rule 56(c), I.R.C.P., which reads in part:

'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

This rule must be construed in conjunction with Rule 56(e), I.R.C.P. See 3 Barron & Holtzoff, Federal Practice and Procedure, §§ 1232.1, 1235 and 1235.1 (1958); 6 Moore, Federal Practice, p56.11 (2d ed. 1953) and p56.22 (Supp.1964).

Appellant contends that this action was initiated under I.C. § 49-1404 and that consent, either express or implied as set out therein, is a genuine issue of material fact which should be resolved at trial and not by way of summary judgment. The pertinent portion of I.C. § 49-1404 reads:

'Owner's tort liability for negligence of another--Subrogation.--1. Responsibility of owner for negligent operation by person using vehicle with permission--Imputation of negligence. Every owner of a motor vehicle is liable and responsible for the death of or injury to a person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, expressed or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.'

On motion for summary judgment the trial court must determine if there are any material factual issues which should be resolved before the trier of facts. The trial judge on such motion does not resolve factual issues or weight the evidence. Valentine v. South Coast Corporation, 218 F.Supp. 148 (E.D.La.1963); Cox v. American Fidelity & Casualty Co., 249 F.2d 616 (9th Cir. 1957); Sutton v. Brown, 85 Idaho 104, 375 P.2d 990 (1962); Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962); In re Killgore's Estate, 84 Idaho 226, 370 P.2d 512 (1962); Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960).

Summary judgment 'may be loosely defined as a judgment decreed by the court in a case pending before it when as a matter of law the proceedings show that there is no issue between the parties.' Guerrero v. American-Hawaiian Steamship Company, 222 F.2d 238 (9th Cir. 1955).

It is consistently held that summary judgment 'should be invoked with caution to the end that litigants may be afforded a trial where there exists between them a bona fide dispute of material facts. And the pleadings upon which the motion is based are to be liberally construed in favor of the party against whom the motion is directed.' Alaniz v. United States, 257 F.2d 108 (10th Cir. 1958). See also Allison v. Mennonite Publications Board, 123 F.Supp. 23 (W.D.Pa.1954); and Purity Cheese Co. v. Frank Ryser Co., 153 F.2d 88 (7th Cir. 1946).

In support of appellant's contention he argues that I.C. § 49-759 imposes implied consent upon respondents. Said section reads:

'No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highways.'

This argument is without merit. The above-cited statute in and of itself does not imply consent for an employee to use a vehicle owned by an employer and left unattended with the key remaining in the ignition. This is not to say, however, that consent to use a vehicle might fairly be implied in the proper circumstances from the fact that keys are left in an unattended vehicle.

The protection provided by the above statute is twofold. It is a deterrent to theft and is a safety device designed to protect members of the public from damage caused by the operation of a motor vehicle by an unauthorized person. The above statute is further inapplicable to the facts presented by the case at bar by the following provision of the Idaho statutes, I.C. § 49-522:

'The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except: * * *' (The exceptions have no application.)

See Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964).

The...