This matter is before us from an order sustaining motions for summary judgment in favor of the Appellees (Defendants below). We feel called upon to first decide: If Appellees (Defendants below) may present new issues, arguments and authorities to sustain the trial court's granting of summary judgment which, if raised at time of hearing motions, would have presented a material fact and issue for determination.
We hold they cannot.
A recital of the pleadings and facts is necessary. Plaintiff alleged that he purchased a Ward's Riverside battery from Montgomery Ward (Ward's) in Ada, Oklahoma, in October of 1968, thereafter installing same in his International bulldozer. On or about May 1, 1969, while the dozer was being operated, the battery cables became loose; he then stopped operation, left the motor running, took a pair of ordinary pliers and commenced to adjust the battery cables. He alleged that as he tapped lightly on the cables the battery exploded, causing a fire that destroyed and damaged his equipment to the extent of $4,765.22. His allegation that the explosion was the proximate cause of the fire followed and then Plaintiff alleged that Riverside was a Ward's brand name and that the battery was manufactured for Ward's by the Defendants Gould, Inc., or ESB, Inc., and that Ward's and either Gould or ESB, whichever was the manufacturer, had impliedly or expressly warranted that the battery was free from defects in materials and workmanship and was fit and safe for proper use. He then followed with an allegation of tort liability (negligence) for the breach of a duty owed in marketing a dangerous battery or failing to use the highest standards of workmanship and quality materials, etc. He finally alleged that Ward's and the manufacturer of the battery were liable under the theory of strict liability in tort. His prayer was in the amount set out aforesaid and that the parties Defendant should be required to
Various special appearances, motions, demurrers, requests for admissions, etc., followed and in due course answers were filed separately by Gould in the form of a general denial; by ESB in the form of a general denial; contributory negligence, failure to notify under 12A O.S. 1971, § 2-207(2)(c); and, by Ward's in the form of a general denial, contributory negligence, misuse of the product, and unavoidable casualty. Ward's also filed a cross-petition against ESB, Inc., which it alleged had manufactured the battery, seeking judgment against ESB if judgment was rendered against Ward's for any sum.
Before and after the answers were filed, interrogatories, depositions and requests for admissions were made by the parties Defendant, and in May of 1971 all of the Defendants filed motions for summary judgment which were heard by the trial court on May 21, 1971. They were taken under advisement, and ruled upon on March 22, 1972 — when the trial court sustained all Defendants' motions for summary judgment.
Plaintiff thereafter made timely appeal.
A search of the record indicates that at no time prior to the hearing or ruling on Defendants' motions for summary judgment was an attack made upon the parties in interest or the substantial interest of the Plaintiff. It appears that after the trial court's sustaining all Defendants' motions for summary judgment and after the Appellant/Plaintiff had filed his petition in error and perfected his appeal in this Court on April 21, 1972, and after the Appellant had filed his brief on July 25, 1972, the Appellee/Defendant ESB filed with the trial court a motion to perpetuate testimony under 12 O.S. 1971, § 538.7. On September 12, 1972, Appellee/Defendant ESB's motion to perpetuate testimony was sustained and thereafter interrogatories were submitted to the Appellant/Plaintiff under 12 O.S. 1971, § 549. On October 19, 1972, the Appellant admitted he had been paid by his fire insurance carrier at least the sum of $4,765.22, the amount of his prayer, and that such payment was made prior to filing his petition.
On November 3, 1972, the Appellees ESB and Ward's filed motions to dismiss in this Court alleging that the Appellant's damages of $4,765.22 had been paid to Appellant by his fire insurance carrier and that under 12 O.S. 1971, § 78
The motions to dismiss filed by Appellees Ward's and ESB lead us to the consideration of 12 O.S. 1971, § 221
Appellant, upon receipt of the motions to dismiss as filed in this Court by Ward's and ESB, took two actions. On November 15, 1972, he filed in this Court a motion to increase his prayer from $4,765.22 to $4,800.22, alleging the additional $35.00 was the cost of replacing the exploded battery; and, on November 27, 1972, he responded to the motions to dismiss alleging that Ward's and ESB had waived their right to raise the issue of parties and their substantial rights by not presenting the issue to the trial court by demurrer, answer, or other pleading, including motions for summary judgment.
When we recently dealt with Rule 13, 12 O.S. Ch. 2, App.
We affirm this rule and in so doing, point out that the motion for (summary) judgment where facts are controverted should be denied "if the facts concerning any issued raised by the pleadings" are conflicting or disputed. The issues argued by the Appellees here had not been raised in the trial court, although nothing precluded the Appellees from testing the necessary parties or the interest of said
We have held many times that the Supreme Court is confined to issues presented by the record. See: Ajax Contractors, Inc. v. Myatt, 424 P.2d 30 (Okl., 1967); McGhee v. McAllister, 474 P.2d 940 (Okl., 1970), and Board of County Com'rs of Choctaw Co. v. Schuessler, 358 P.2d 830 (Okl., 1961). Although it can be argued that the record as now constituted does contain evidence of payment of at least $4,765.22, nonetheless under the facts and circumstances presented we refuse to dismiss this appeal. Although distinguishable on the facts, we believe the recent case of French v. Sotheby & Co., 470 P.2d 318, 322 (Okl., 1970) supports our holding, for as dicta we indicated:
In French we reversed the trial court's sustaining a motion for summary judgment on the existence of a material fact at issue as defined in 12A O.S. 1971, § 2-709 and refused to consider the after-discovered evidence which would have sustained a defense of accord and satisfaction, simply because the same had not been pleaded and was not an issue. At page 323 of French, supra, we stated:
We next should determine whether under Rule 13, supra, there was a substantial controversy as to a material fact.
Plaintiff's petition alleges three theories of recovery: warranty, negligence, and strict liability in tort. We decided in Kirkland v. General Motors, 521 P.2d 1353 (Okl., 1974) that prior to that case we had not adopted a strict liability theory of recovery and although we may be tempted to apply such doctrines as found therein to this matter, we recall that its application was adopted prospectively and for cases for trial from and after the issuing of the mandate therein. We note that the mandate has issued.
Rule 13 was promulgated by this Court under its powers granted by Art. VII, Sec. 6 of the Oklahoma Constitution and 12 O.S. 1971, § 74 and 20 O.S. 1971, § 24. The Rule was adopted by this Court on March 15, 1965. Historically, summary judgment rules were first applied to actions ex contractu
the renowned Justice was applying Rule 113 of the New York Civil Practice Act to an action ex contractu. His reference to the issue and the quote is alive and viable for us today in the consideration of modern rules, for a pleading may be fair on its face but false or frivolous in fact.
In Perry v. Green, supra, and in Flick v. Crouch, 434 P.2d 256 (Okl., 1967), we observed that Rule 13 was patterned after Rule 56 of the Federal Rules of Procedure. The Federal cases under Rule 56 therefore have undoubted special application and are entitled to such consideration by this Court.
Rule 56 was the first instance of any rule or statute which authorized the application of summary judgment procedures to all civil actions and to any and all types of claims and issues that may arise in such actions. See 6 Moore's Federal Practice, 2nd Edition, 2011, 56.01. This same author
This Court has three times dealt with Rule 13 in negligence actions
In the instant case, there is little doubt that the pleadings indicate the presence of conflicting issues of fact. The Plaintiff in his Petition alleges a breach on the part of the manufacturer of the wet-cell storage battery in question of its implied warranty of fitness for its intended use. This does not appear to be an allegation of a breach of a Uniform Commercial Code warranty with its accompanying limitations which are raised in defense, but an allegation of breach of warranty of fitness recognized in Marathon Battery Company v. Kilpatrick, 418 P.2d 900 (Okl., 1966). In this regard, the Petition alleges defective or negligent construction of the subject storage battery. The answers of the seller of the battery and the alleged manufacturer of the battery deny this allegation, and thus put it at issue as a conflicting issue of fact. The answers also go on to interpose the possible defenses of contributory negligence, misuse of product, and unavoidable accident. These defenses also put at issue conflicting issues of fact regarding the Plaintiff's conduct and the explosion.
Considering the motions for summary judgment in the light most favorable to Plaintiff and applying the same standard to the affidavits, deposition and admissions, there remains a genuine controversy as to the material quality of the product, suggesting a defect. There is a genuine controversy as to whether, under the circumstances and facts, a duty was breached by one or more of the Defendants and of course the Plaintiff should be entitled to prove a negligent reason for the explosion. Not only do the pleadings which frame the issues for trial, but likewise the thrust, scope and purport of the affidavits and like material, raise questions which are material in nature and can only be determined by a jury. Plaintiff did indicate by his admissions that he would have evidence at the time of trial as to the chemical and physical makeup of the battery and viewing this statement in a light most favorable to the party opposing the motion (Plaintiff) certainly raises an issue of negligence.
In the deposition available to the trial court for consideration, Plaintiff testified to being an experienced mechanic and dozer operator. He testified that the equipment which had burned was sometimes left where it was available or accessible to the public and was not under constant surveillance. He acknowledged that he did not have the battery in question and had made no tests. Plaintiff described his action at the time of the explosion; he had been lightly tapping on the battery cables while the dozer was running. As we analyze the deposition, admissions, affidavits and pleadings, we believe them to be made of the "stuff reasonable men could differ about" or "grist for the jury."
The deposition of Ward's employees had no effect other than cumulative. There were, to be sure, certain objections made to the testimony of the Ward's employees, but these objections went to the question of hearsay and credibility of the Ward's witnesses and the records of that company. They were not sufficient to have ruled out the possibility that proof of the manufacturer of the battery could not be established, which may or may not have been crucial to Plaintiff's case.
Analysis of all available pleadings, depositions, etc. on hand and considered by the trial court at the time of the motions for summary judgment leads us to believe that a substantial controversy of material facts existed and that this cause must be reversed. Reasonable men in the exercise of fair and impartial judgment might have differed or reached opposite conclusions as to the actions of the Plaintiff at the time of the explosion.
The Defendants, in short, ask us to conclude that difficulty of proof of defect or negligence, because of the non-availability of the battery for scientific testing, should be the deciding element in establishing the existence of controversial issues of fact. This we decline to do. In an explosion case it may very well be that the product cannot be recovered because it has been disintegrated or atomized. We find no convincing authority, nor are we cited to any, that would not allow proof of negligence or proof of defect by circumstantial evidence, expert opinion, or other evidentiary rule. Marathon Battery Co., supra, decided by this Court, dealt with a dry-cell battery, but we think it equally applicable to an even more dangerous wet-cell battery and Marathon did represent the prevailing view of this Court at the time of hearing motions for summary judgment. See Underhill et al. v. Anciaux, 68 Nev. 69, 226 P.2d 794 (1951) for a case dealing with food poisoning where not enough of a sample of a bottled drink existed to scientifically analyze or test.
No less an authority than the Supreme Court of the United States has held in United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176:
See also Adickes v. S.H. Kress, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142; United States v. Kansas Gas & Electric Co., 287 F.2d 601 (10th Cir. C.A.); United States v. Farmers Mutual Ins. Association, 288 F.2d 560 (8th Cir. C.A.); Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573 (7th Cir. C.A.), and, Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439. This approach to summary judgment proceedings was not followed by the trial court; we would adopt it for Oklahoma.
It is inferred by the Defendants that because the procedure on summary judgment has been developed to expedite and relieve the court from the trial of issues when no controversy exists, the trial court is justified in considering the matter as to whether it will ultimately be required to direct a verdict for one party or the other. In Pierce v. Ford Motor Company, 190 F.2d 910 (4th Cir. C.A.) that court held:
See also Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, 976 (1962).
We find it unnecessary to consider whether or not a party may amend his Petition after the appeal has been lodged in this Court, for we reverse the granting of summary judgment in this case and remand the same to the District Court of Atoka County for proceedings not inconsistent
Reversed and remanded.
WILLIAMS, V.C.J., and HODGES, LAVENDER and DOOLIN, JJ., concur.
IRWIN and BARNES, JJ., concur in result.
BERRY, J., concurs specially.
DAVISON, C.J., and SIMMS, J., dissent.
BERRY, Justice (specially concurring):
I concur specially in the majority opinion but do not believe it precisely states applicable rules to determine when summary judgment should be granted for defendant and when plaintiff is required to present evidentiary materials in opposition to defendant's motion for summary judgment.
When defendant moves for summary judgment he must show there is no substantial controversy as to one material fact of plaintiff's cause of action and this fact is in defendant's favor, or show there is no substantial controversy as to all material facts constituting an affirmative defense. Runyon v. Reed, Okl., 510 P.2d 943.
Plaintiff's petition alleges Ward's and the manufacturer are liable because they failed to instruct him as to potential danger in use of the battery under normal conditions, or are liable under principles of negligence, warranty, or strict liability because it was defective.
Defendants contend summary judgment was proper because plaintiff must prove the battery was defective when it left their possession and the evidentiary materials indicate he will not be able to do so.
These evidentiary materials indicate plaintiff had the battery for at least six months; it was not a sealed container; plaintiff checked it and added water to it; the bulldozer was left unattended and third parties could have tampered with the battery; no tests were conducted upon it to determine cause of explosion; and it is not now available for tests.
This contention ignores plaintiff's allegation defendants had a duty to warn him of dangers involved in use of the battery.
Even if the battery was not defective, plaintiff might be entitled to recover if he could establish defendants breached a duty to warn him the battery might explode and the failure to warn was the proximate cause of his damages. Technical Chemical Co. v. Jacobs, Tex., 480 S.W.2d 602.
None of the evidentiary materials proffered by defendants provide any information concerning propensities of batteries of this type; what warning, if any, was given; or whether the failure to warn was the most likely cause of the explosion.
Since defendants failed to sustain their burden of producing evidentiary materials to establish there was no substantial controversy as to one of the material facts of plaintiff's cause of action under this theory, plaintiff had no duty to produce evidentiary materials to show an issue of fact did exist. Fitzke v. Shappell, 6 Cir., 468 F.2d 1072; 6 Moore's Federal Practice § 56.15(3), p. 2335.
Therefore, the trial court erred in granting summary judgment for defendants.
Furthermore, the evidentiary materials do not establish plaintiff will be unable to prove the battery was defective. In Marathon Battery, Inc. v. Kilpatrick, Okl., 418 P.2d 900, the battery which exploded was a sealed container. We held this fact created an inference which supported the jury's finding the battery was defective at the time it left the possession of the manufacturer.
Defendants contend that case is distinguishable because the wet cell battery involved herein was not a sealed container.
Therefore, it is my opinion the evidentiary materials do not establish plaintiff will be unable to prove there was a defect in the battery at the time it left defendants possession.
Defendants do not contend there was no substantial controversy as to any other material fact of plaintiff's cause of action, or that there was no substantial controversy as to all material facts constituting an affirmative defense.
For the reasons stated above I concur specially in the majority opinion.
See Whitman v. Whitman, 397 P.2d 664 (Okl., 1964):
See also Swan v. Home Savings & State Bank, 148 Okl. 42, 297 P. 250 (1931); In re Muskogee Gas & Electric Co., 83 Okl. 167, 201 P. 358 (1929); Muller v. Campbell, 97 Okl. 91, 222 P. 980 (1924); American Fidelity & Casualty Co. v. American Bus Lines, 178 F.2d 7 (10th Cir. CA).
We are particularly referred to McMahan v. McCafferty, 205 Okl. 656, 240 P.2d 443 (1952), Syllabus 3:
and continuing at page 446:
See also Great Western Motor Lines, Inc. v. Cozard, 417 P.2d 575 (Okl., 1966).
Again see Great Western Motor Lines, Inc. v. Cozard, supra.
We are not unmindful that Rule 13 has been amended since hearing motions for summary judgment in this case; however, the changes are not material.
"Although summary judgment is available in a proper case in actions grounded in negligence, it is not usually as feasible in negligence cases as in other kinds of litigation, because issues of negligence, including contributory negligence, are not ordinarily susceptible of summary adjudication for or against the plaintiff or claimant. What adds both to the intrinsic procedural difficulty of summary judgment and to some of the confusion in dealing with the device in negligence actions is that even though there is no dispute about how an accident occurred, the presence or absence of negligence often remains a question of fact which requires a trial under traditional principles of the law of negligence. While it cannot be said that under no circumstances can the question of gross or wanton negligence be disposed of on summary judgment, most of the cases have resulted in a holding that summary judgment was not proper under the circumstances of the particular case. In some cases, however, summary judgment has been granted." (citing cases)