Roemer v. Green Pastures Farms, Inc. , 97 Idaho 591 ( 1976 )

BAKES, Justice,

concurring in part and dissenting in part:

I concur with the majority opinion except that portion denying damages for the cost of repairs to one of the pumps in the amount of $263.62. The evidence of the plaintiffs was clear, as the record before this Court indicates, that the defendant represented to the plaintiffs in the fall of 1969, after the irrigation season was over and the pumps were shut down, that both of the irrigation pumps were in good condition. The plaintiffs had the defendant start up one pump to check its condition and it was satisfactory. The defendant represented that the other pump was in better condition than the one which the plaintiffs started. Relying upon this and other representations, the plaintiffs testified that they purchased the property. After the plaintiffs took possession of the property and tried to start the second pump, they testified that the pump shook so badly that the ground vibrated. The plaintiffs’ evidence showed that it took $263.62 in order to have the pump repaired so that it would operate properly.

The majority states that the district court “weighed the evidence and found against the plaintiffs.” There was nothing for the district court to weigh. The plaintiffs’ evidence was uncontroverted. This Court has previously held that in ruling on a 41 (b) motion the trial courts cannot “disregard testimony which was neither contradicted, impeached nor inherently improbable.” Hook v. Horner, 95 Idaho 657, 517 P.2d 554 (1973). While the $263.62 claim may be minor compared to plaintiffs’ other claims, that is no reason to deny plaintiffs their day in court. I would reverse the cause and permit the plaintiffs to proceed on that claim. I think it is setting a dangerous precedent to permit a district court to totally disregard the plaintiffs’ evidence on a Rule 41 (b) motion.

The result reached by the majority is even more incongruous when you consider that had the plaintiff submitted the same evidence which he submitted at trial by way of a deposition or affidavit in support of a motion for summary judgment the trial court would have been required to render summary judgment in plaintiff’s favor since the rule has long been that “. . . it is not the function of the trial court to weigh the evidence . . .’’in ruling on a motion for summary judgment. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 414, 353 P.2d 657, 659 (1960). It is difficult to understand how you can sustain a Rule 41(b) motion to dismiss against the plaintiffs on the $263.62 claim when the plaintiffs would have been entitled to summary judgment for that amount based on the same record.