Zampos v. United States Smelting Refining and Min. Co.

• Decision Date: 09 July 1953
• Docket Number: No. 4590,4591.,4590
• Citation: 206 F.2d 171
• Parties: ZAMPOS v. UNITED STATES SMELTING, REFINING AND MINING CO. ANDERSON v. UNITED STATES SMELTING, REFINING AND MINING CO.
• Court: U.S. Court of Appeals — Tenth Circuit

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.

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

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 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 F.2d 209.

By affidavits which were in no manner discredited as dishonest, defendant showed these facts in each case upon the hearing on the motion for summary judgment. The flood in question occurred in Bingham Canyon, near Bingham City, Utah, in April, 1952, when a large deluge of water suddenly gushed from the portal of the mine. Mining operations had been carried on in the Bingham Canyon area for 89 years. There were more than 600 miles of underground tunnels, drifts, winzes, raises, shafts, and other openings in the area. There were hundreds of abandoned tunnels and openings. And after operations were abandoned in such tunnels, it was not the practice to maintain them or to seal their portals except to erect gates to prevent trespassing. The portal of the mine in question was located about fifty feet above the bottom of Bingham Canyon. The tunnel was begun in the year 1910. By 1920, it extended to a total length of 8,350 feet. And tributary to the tunnel, there were 9,810 feet of development workings which consisted primarily of drifts, raises, and winzes. The last work in the tunnel was done in 1924. In 1929, the defendant acquired by ownership of stock an interest in the property; and in 1950, it acquired title to the property. It was after the tunnel had been completed and after work in the mine ceased that defendant first acquired an interest in the property. During the twenty-eight years intermediate the termination of operations in the mine and the flood, a stream of water estimated at from 35 to 40 gallons per minute in the fall of the year and from 50 to 75 gallons per minute in the spring flowed out of the tunnel. This water flowed in a small ditch along the side of the tunnel to the portal and was then appropriately diverted into the sewer system of the City of Bingham. During that entire time, the flow was fairly constant. It did not stop, fluctuate substantially, or otherwise give warning that water was accumulating or becoming impounded underground. Defendant did not store or impound water anywhere within its mining property; and it did not have knowledge or notice that water was accumulating or being impounded therein. During the winter preceding the flood, there was an extraordinary amount of sleet, snow, and ice on the ground in the area surrounding Bingham Canyon; and for a short time immediately preceding the flood, temperatures were unusually high for that time of the year. The mountains in the Bingham Mining District are virtually...