Taylor v. Choules
| Decision Date | 26 May 1981 |
| Docket Number | No. 13391,13391 |
| Citation | 628 P.2d 1056,102 Idaho 222 |
| Parties | Jean TAYLOR, Plaintiff-Appellant, v. Jack CHOULES and Rodney Choules, and Does 1 through 5, Defendants-Respondents. |
| Court | Idaho Supreme Court |
W. Scott Barrett, of Barrett & Mathews, Logan, Utah; Eugene L. Bush of Sharp, Anderson & Bush, Idaho Falls, for plaintiff-appellant.
David H. Maguire, of Maguire & Ward, Pocatello, for defendant-respondent Jack Choules.
Gary L. Cooper, of Racine, Huntley & Olson, Pocatello, for defendant-respondent Rodney Choules.
This case arises from an automobile accident which occurred August 28, 1976, on State Highway 91 south of Downey, Idaho. On October 19, 1977, appellant filed an action for damages in the Sixth District Court, Bannock County (venue was later changed to Franklin County). The action was filed against Jack Choules, owner of the pickup truck which collided with appellant's vehicle, and his son, Rodney Choules, allegedly the driver of the pickup. The respondents, Jack and Rodney Choules answered in December 1977, admitting ownership of the truck but denying that Rodney was driving at the time of the accident.
The matter was set for trial, but the respondents filed in February, 1978, a motion to vacate the trial setting on the grounds that discovery had not yet been completed and that a necessary party, the driver of the truck, had not been joined. The respondents also maintained in an amended answer and in answers to interrogatories filed in March, 1978, that Rodney was not driving but rather, that a friend, Louis Bennett, was operating the truck at the time of the accident.
At the scene of the accident, both Rodney and Louis told the investigating officer that Rodney was driving. However in May 1977 at the trial of the traffic citations issued to Rodney at the scene (for inattentive driving and violating a restricted license), both Rodney and Louis testified that Louis was driving the truck after changing places with Rodney some 100 yards south of the accident site. Both had been drinking earlier in the day, and Rodney stated that they changed drivers since he was "sleepy." This version of events was later repeated by both during their depositions, taken and transcribed during the spring and summer of 1978, as well as appearing in the answers to interrogatories, supra.
Respondent Jack Choules moved for summary judgment in April, 1978, on the ground that his truck was being operated at the time of the accident without his express or implied permission. As of this juncture, the Choules were represented by separate counsel. The district court denied this motion in September 1978, stating that questions of fact remained concerning the relationship between Jack and Rodney and the nature of any permission to drive the truck. A later statement by the court indicates that the depositions referred to above had not been filed with the court at this time.
On March 8, 1979, counsel for the Choules jointly filed a motion for dismissal and for summary judgment or judgment on the pleadings on the ground that the driver of the truck was Louis Bennett. The motion was based on the pleadings, discovery, and other documents before the court; no affidavits were filed by respondents. Appellant responded with an "affidavit" (by counsel) and a memorandum of points and authorities.
The court entered an order on May 15, 1979, granting the motion for summary judgment stating that, in light of the depositions of Choules, Bennett, the investigating officer and others, no issue of factor existed as to Louis Bennett actually being the driver of the truck at the time of the accident. The court ruled that this state of affairs was possibly known to the appellant in May of 1977 when the traffic trial occurred, but was certainly known not later than the time of the taking of the depositions. The court further stated that since the Idaho Code required joinder of the operator of the vehicle in order to impute negligence to the owner, summary judgment was proper as to Jack Choules unless appellant had the opportunity to amend. However, since the court determined that appellant had notice of the fact that Louis was driving well before the expiration of the two year statute of...
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