Wheatland Irr. Dist. v. McGuire

• Decision Date: 16 July 1975
• Docket Number: No. 4353,4353
• Citation: 537 P.2d 1128
• Parties: WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant (Defendant below), v. Bernard R. McGUIRE et al., Appellees (Plaintiffs below), and Dean T. Prosser, Jr., and Harriot Prosser, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 1128

537 P.2d 1128

WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant (Defendant below), v. Bernard R. McGUIRE et al., Appellees (Plaintiffs below) and Dean T. Prosser, Jr., and Harriot Prosser, Appellees (Plaintiffs below).

No. 4353.

Supreme Court of Wyoming.

July 16, 1975.

William R. Jones and Raymond B. Hunkins, of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

John J. Rooney, of Rooney & Horiskey, Cheyenne, for appellees McGuires.

Byron Hirst, of Hirst, Applegate & Dray, Cheyenne, for appellees Prossers.

Before GUTHRIE, C. J., and McCLINTOCK and ROSE, JJ.

ROSE, Justice.

This matter comes to us on an appeal from a summary judgment entered in favor of the plaintiffs-appellees on the question of liability. The case was tried on the issue of damages alone.

The appellees urge that this appeal is out of time-a matter which will be considered in detail.

The defendant-appellant urges five separate points on the appeal, all but one of which are directed to alleged trial errors and, in view of our holding here, we deem it necessary to consider only one, namely-whether or not the lower court erred in granting a summary judgment for the appellees on the question of liability.

There was sufficient record showing at the time when the motion for summary judgment was argued and the judgment entered, to constitute an issue of material fact under Rule 56 of the Wyoming Rules of Civil Procedure. The lower court held, however, that judgment should be entered because, as a matter of law, the defendant-appellant was precluded from defending on the liability issue since it was admitted that the appellant's dam broke, releasing water, thus causing damage to the property of the appellees.

The appellant's proffered defense was to be that the dam's rupture was caused by an act of sabotage, and the affidavits of expert witnesses on file were sufficient to raise the factual issue. The lower court held that the appellant was precluded from making such a defense by our § 41-46, W.S.1957, the effect of this ruling being that the aforesaid statute imposes such absolute liability as to make the defendant reservoir owner an insurer against the consequences of

escaping water. APPELLEES' CONTENTION THAT THE APPEAL ON THE ISSUE OF LIABILITY IS OUT OF TIME

Appellees-McGuires urge that these proceedings should be dismissed for the reason that an appeal on the issue of liability is now precluded since the summary judgment entered in favor of the plaintiffs-appellees was a final order from which a separate appeal could have and should have been taken and, failing which, it is contended, the appellant-defendant is now out of time.

We find the contention to be without merit.

On March 29, 1971, the court made and entered a summary judgment on the issue of liability alone, leaving unresolved the question of damages. The motion for summary judgment was made under and by authority of Rule 56(c) of the Wyoming Rules of Civil Procedure, but counsel for appellees-McGuires now urges that even though the motion was one for summary judgment on liability alone, leaving for determination the damage issue, the judgment entered upon the motion should be treated as though it were a Rule 54(b) judgment and therefore a final appealable order as required and provided for in Rule 72(a) of the Wyoming Rules of Civil Procedure.

Rule 54, W.R.C.P., permits the court to enter a final judgment:

'When more than one claim for relief is presented in an action . . ..' (Emphasis ours) '. . . or when multiple parties are involved, (in which case) the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties . . ..' (Bracketed material ours)

And as to these claims and these parties the judgment must be

'the final determination of the rights of the parties in action.' Rule 54(a), W.R.C.P. (Emphasis ours)

The judgment rendered in the instant matter does not fit any of the Rule 54 requirements. ¹

The judgment did not finally determine the right of the parties-there was left undetermined the question of damages-the claim involved was not a multiple claim as required by the rule, but rather the pleadings presented a single claim with various issues delineated in connection therewith. ²

Additionally, the summary judgment on the issue of liability alone entered into the record on March 29, 1971, did not qualify as a 'final order' from which an appeal could be taken under Rule 72 of the Wyoming Rules of Civil Procedure, for the reason that it did not satisfy the requirements of sub-section (a) of that rule. ³

At least as important as any of the above reasons for holding the summary judgment not to be an appealable order is that Rule 56(c) of the Wyoming Rules of Civil Procedure says that it is not final and therefore qualified as an appealable order.

The last mentioned rule provides in pertinent part:

'A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.' (Emphasis ours)

This language means that a summary judgment, where liability is resolved but damages are left undetermined, is interlocutory and not a final order from which an appeal to this court may be taken. It could hardly be more clear.

In Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Volume 3, where Rule 56(c) is discussed at pages 194 through 196, it is said:

'With regard to damages, Rule 56(c) originally provided that summary judgment should be entered if it appeared that, 'except as to the amount of damages' there was no genuine issue as to any material fact and that the moving party was entitled to a judgment as a matter of law. This provision caused some doubt as to whether a summary judgment might be rendered if there was a question as to the amount of damages. The subdivision was amended by omitting the phrase quoted above and adding the provision that a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. . . . Such an interlocutory order is not a final decision and is not appealable.' (Citing Borges v. Art Steel Co., C.A.2d 1957, 243 F.2d 350; Russell v. Barnes Foundation, C.C.A.3d, 1943, 136 F.2d 654; also citing Maybury v. City of Seattle, 1959, 53 Wash.2d 716, 336 P.2d 878; and Clear v. Marvin, 1961, 83 Idaho 399, 363 P.2d 355, 356) (Emphasis ours)

In Clear v. Marvin, 83 Idaho 399, 363 P.2d 355, 356 (1961), an action for wrongful death was involved wherein it was alleged that the defendant's negligence was the cause of the death of the plaintiff's minor daughter. Upon the plaintiff's motion for summary judgment the court entered a judgment determining the defendant's liability and further that the only issue remaining was the amount of damages, from which summary judgment the defendant appealed. The court, holding that the judgment appealed was interlocutory in character, said:

'The judgment here entered has the character of finality, but only as to a portion of the issues raised by the pleadings. It is a judgment declared by the rule to be interlocutory in character.

'Negligence and contributory negligence are isses of fact presented by the pleadings. The correctness of the court's ruling as to such issues may be seriously questioned. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657. This court may determine such question upon an appeal from the final judgment, but not upon this attempted appeal from the interlocutory judgment.' (Citing cases and 3 Barron & Holtzoff, §§ 1231, 1241)

In Russell v. Barnes Foundation, C.C.A.3d, 136 F.2d 654 (1943), a summary judgment for plaintiff against the defendant was entered with an order that the case proceed for trial for determination of damages, and even though the order determined the defendant's liability to the plaintiff the court held that such an order will not become a 'final decision' or 'final adjudication' of the controversy between them until the damages to which the plaintiff is entitled have been assessed.

In the case of Borges v. Art Steel Co., C.A.2d, 243 F.2d 350 (1959), eleven employees of the defendant sued to recover increased wages and a motion for summary judgment was issued on the legal issue, whereupon the court held that they were entitled to the increase but failed to fix a dollar amount. The summary judgment order was appealed from, the appellate court dismissing the appeal on the ground that it was premature before the amount of the recovery is fixed and is not, therefore, an appealable order.

For all the reasons stated and under the authorities cited we hold that the summary judgment made and entered here March 29, 1971, was not a final order under Rule 72(a) of the Wyoming Rules of Civil Procedure from which an appeal could have been taken to this court. It follows that the appeal taken from the final judgment entered herein on the 2nd day of October, 1971, was timely and did present for consideration here the points set out in the appellant's brief, including the question of whether or not there was error on the part of the trial court in sustaining the plaintiffs' motion for summary judgment and holding the appellant liable as a matter of law.

MOTION FOR SUMMARY JUDGMENT

Introduction

Appellees ask us to interpret the following statute as being one of absolute liability ⁴-liability without fault-liability for which there is no excuse. The statute is:

§ 41-46 (W.S.1957). Liability of owners.-The owners of reservoirs shall be liable for all damage arising from leakage or overflow of the waters therefrom, or by floods caused by breaking of the embankments of such reservoir.'

Appellees urge upon this statute an interpretation which makes the owner of a reservoir an insurer and liable for every possible contingency known to the mind of man where his water escapes and damage results. This philosophy...