Zampos v. United States Smelting Refining and Min. Co., No. 4590

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPHILLIPS, , and BRATTON and MURRAH, Circuit
Citation206 F.2d 171
Decision Date09 July 1953
Docket NumberNo. 4590,4591.
PartiesZAMPOS v. UNITED STATES SMELTING, REFINING AND MINING CO. ANDERSON v. UNITED STATES SMELTING, REFINING AND MINING CO.

206 F.2d 171 (1953)

ZAMPOS
v.
UNITED STATES SMELTING, REFINING AND MINING CO.
ANDERSON
v.
UNITED STATES SMELTING, REFINING AND MINING CO.

Nos. 4590, 4591.

United States Court of Appeals Tenth Circuit.

July 9, 1953.


206 F.2d 172

H. G. Metos, Salt Lake City, Utah (Samuel Bernstein, Salt Lake City, Utah, on the brief), for appellants.

206 F.2d 173

C. W. Wilkins, Salt Lake City, Utah (G. A. Marr, R. B. Holbrook and Richard H. Nebeker, Salt Lake City, Utah, on the brief), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

These actions were for the recovery of damages caused by a flood. In each case, it was alleged in the complaint that the defendant owned certain mining property in Bingham Canyon, Utah; that plaintiff owned certain property situated near such mining property; that defendant negligently stored water in the tunnels and drifts of its mining property; that it negligently allowed the stored water to sweep down upon the property of plaintiff; and that damage resulted. The defendant denied negligence. And it pleaded that the flood water was unusual, extraordinary, unprecedented, and not reasonably to be anticipated by an ordinarily prudent person; that such extraordinarily flow of water was the direct result of unusual and unprecedented climatic conditions; and that the proximate cause of the flood was an act of God. Defendant filed a motion in each case for summary judgment. Affidavits were attached to the motions and depositions were taken. The cases were consolidated for the purpose of a hearing upon the motions for summary judgment. Finding that there existed no genuine issue as to any material fact and that the defendant was entitled to judgment in its favor as a matter of law, such judgment was accordingly entered in each case. A motion was filed in each case to set aside the judgment and grant a trial of the cause. Affidavits were attached to the motion. Defendant filed countervailing affidavits, and plaintiff filed a reply affidavit. In each case, the motion to set aside the judgment was denied, and an appeal was seasonably perfected. For convenience, continued reference will be made to the parties as plaintiffs and defendant, respectively, rather than appellants and appellee.

Plaintiffs assert that there was a genuine issue of material fact upon which the outcome of the litigation depended, and that therefore it was error to enter summary judgments. Rule of Civil Procedure 56(c), 28 U.S.C., authorizes the entry of a summary judgment when it affirmatively appears from the pleadings, depositions, and admissions on file, together with the affidavits, if any, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment in his favor as a matter of law. The purpose of the rule is to provide against the vexation and delay which necessarily come from the formal trial of cases in which there is no substantial issue of fact. It is to permit the expeditious disposition of cases of that kind. But the procedure is not intended to be used as a substitute for a regular trial of cases in which there are disputed issues of fact upon which the outcome of the litigation depends. And it 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. Associated Press v. United States, 326 U.S. 1, 6, 65 S.Ct. 1416, 89 L.Ed. 2013. But if it affirmatively appears from the pleadings, admissions, depositions, and affidavits, if any, that there is no genuine issue as to any material fact upon which the outcome of the litigation depends, the case is appropriate for disposition by summary judgment and the court should enter such judgment. Broderick Wood Products Co. v. United States, 10 Cir., 195 F.2d 433.

In considering a motion for summary judgment, the court may pierce formal allegations and grant relief if it appears from uncontroverted facts set forth in affidavits, depositions, or admissions on file that as a matter of law there are no genuine issues for trial. Schreffler v. Bowles, 10 Cir., 153 F.2d 1, certiorari denied, 328 U.S. 870, 66 S.Ct. 1366, 90 L.Ed. 1640; Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; New York Life Insurance Co. v. Cooper, 10 Cir., 167 F.2d 651, certiorari denied, 335 U.S. 819, 69 S. Ct. 41, 93 L.Ed. 374. And flimsy allegations which are transparently not well

206 F.2d 174
founded in fact are insufficient to state a justiciable controversy requiring the submission thereof for trial. Sabin v. Home Owners' Loan Corp., 10 Cir., 151 F.2d 541, certiorari denied, 328 U.S. 840, 66 S.Ct. 1011, 90 L.Ed. 1615

On a motion for summary judgment, the burden rests upon the moving litigant to show that there is no genuine issue in respect to any material fact and that he is entitled to judgment in his favor as a matter of law. Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 3 Cir., 190 F.2d 817; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881. All substantial doubts are to be resolved against him, and his supporting affidavits and depositions, if any, are to be carefully scrutinized. Hoffman v. Partridge, 84 U.S. App.D.C. 224, 172 F.2d 275. A supporting affidavit must present evidence which is admissible and must not only be made on the personal knowledge of the affiant but must show that he possesses the knowledge asserted. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318. And where it appears from the whole case, including the affidavits and depositions, if any, submitted in support of the motion, that there is a genuine issue respecting a material fact, the opposite party need not file counter affidavits. Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265. But where the moving party presents affidavits, or depositions, or both, which taken alone would entitle him to a directed verdict, if believed, and which the opposite party does not discredit as dishonest, it rests upon that party at least to specify some opposing evidence that he can adduce which may reasonably change the result. Radio City Music Hall Corp. v. United States, 2 Cir., 135 F.2d 715; Gifford v. Travelers Protective Association, 9 Cir., 153...

To continue reading

Request your trial
52 practice notes
  • Industrial Building Materials, Inc. v. Interchemical Corp., No. 64-432.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 26 Diciembre 1967
    ...637 (8th Cir. 1958); Appolonio v. Baxter, 217 F. 2d 267, 270-271 (6th Cir. 1954); Zampos v. United States Smelting, Ref. & Mining Co., 206 F.2d 171, 173 (10th Cir. 1953); Durasteel Co. v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953); Gibson v. Security Trust Co., 201 F.2d 573,......
  • In re Independent Clearing House Co., Bankruptcy No. 81A-02886
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Utah
    • 6 Agosto 1984
    ...the party opposing the motion. Machinery Center, Inc., supra, 434 F.2d at 6; Zampos v. United States Smelting and Refining and Min. Co., 206 F.2d 171 (10th Cir.1953). The Court will consider factual inferences as tending to show triable issues of material fact in the light most favorable to......
  • Burningham v. Ott, No. 13522
    • United States
    • Supreme Court of Utah
    • 29 Julio 1974
    ...if a party proves all he contends, the law would afford him no relief, see Zampos v. United States Smelting, Ref. & Min. Co. (10 Cir.), 206 F.2d 171; Brandt v. Springville Banking Co., 10 Utah 2d 350, 353 P.2d 460. 2 14 Utah 2d 355, 384 P.2d 396. 3 17 Utah 2d 420, 413 P.2d 807. 4 9 Utah 2d ......
  • General Beverages v. Rogers, No. 4826.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Septiembre 1954
    ...under the Federal Rules of Civil Procedure, 28 U.S.C.A., Zampos v. United States Smelting, Refining and Mining Co., 10 Cir., 1953, 206 F.2d 171; Schreffler v. Bowles, 10 Cir., 1946, 153 F.2d 1, 3. In the latter case, Judge Huxman "The salutary purpose of Rule 56 is to permit speedy and expe......
  • Request a trial to view additional results
52 cases
  • Industrial Building Materials, Inc. v. Interchemical Corp., No. 64-432.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 26 Diciembre 1967
    ...637 (8th Cir. 1958); Appolonio v. Baxter, 217 F. 2d 267, 270-271 (6th Cir. 1954); Zampos v. United States Smelting, Ref. & Mining Co., 206 F.2d 171, 173 (10th Cir. 1953); Durasteel Co. v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953); Gibson v. Security Trust Co., 201 F.2d ......
  • In re Independent Clearing House Co., Bankruptcy No. 81A-02886
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Utah
    • 6 Agosto 1984
    ...the party opposing the motion. Machinery Center, Inc., supra, 434 F.2d at 6; Zampos v. United States Smelting and Refining and Min. Co., 206 F.2d 171 (10th Cir.1953). The Court will consider factual inferences as tending to show triable issues of material fact in the light most favorable to......
  • Burningham v. Ott, No. 13522
    • United States
    • Supreme Court of Utah
    • 29 Julio 1974
    ...a party proves all he contends, the law would afford him no relief, see Zampos v. United States Smelting, Ref. & Min. Co. (10 Cir.), 206 F.2d 171; Brandt v. Springville Banking Co., 10 Utah 2d 350, 353 P.2d 460. 2 14 Utah 2d 355, 384 P.2d 396. 3 17 Utah 2d 420, 413 P.2d 807. 4 9 Utah 2d......
  • General Beverages v. Rogers, No. 4826.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Septiembre 1954
    ...under the Federal Rules of Civil Procedure, 28 U.S.C.A., Zampos v. United States Smelting, Refining and Mining Co., 10 Cir., 1953, 206 F.2d 171; Schreffler v. Bowles, 10 Cir., 1946, 153 F.2d 1, 3. In the latter case, Judge Huxman "The salutary purpose of Rule 56 is to permit speedy and......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT