*1 559 Justice, part and ROSE, concurring in
dissenting part. in KOBIELUSZ, (Plaintiff), Appellant recognize federal majority The review and state constitutions mandate V. and Wilson Willard WILSON Here challenge Stamper’s jeopardy Pete double fords, Wyoming corporation, Accordingly, trial. prior a second to (Defendants). Appellees cer- extraordinary writ of grants court No. 84-94. no provide remedy tiorari where to affording the appeal exists. Instead of Supreme Wyoming. Court of claim, meaningful defendant review of 12, June 1985. however, majority relative- rule on this with- ly question complex double-jeopardy argument briefing or oral
out benefit of only a appears to what me with authority. analysis controlling
cursory and the
would have afforded defendant develop their opportunity fully
State might de-
respective positions, so that we the sound- on
cide this constitutional issue possible.
est foundation concurring dissenting opinion my 106, State, Wyo., P.2d Stamper
in (1983),I reviewed the for our
107-109 basis Stamper’s original conviction
reversal that retrial in this case will
and concluded
subject jeopardy. the defendant to double aggrava-
We overturned his conviction of deadly weapon
ted assault with State,
Stamper v.
ficient to warrant By granting State
such offense. enough evidence
second chance to amass assault aggravated
obtain a conviction of Stamper weapon, place deadly
with a we offense. jeopardy
twice in the same 1, States,
See v. United 437 U.S. Burks The State
S.Ct. 57 L.Ed.2d case opportunity prove its one fair consti- Stamper and is all the
tution allows. developed fully
For these reasons more my concurring dissenting opinion State, 107- supra, P.2d at
Stamper v. only portion I concur writ of granting through
Order review
certiorari; that it I dissent to the extent parties
dispenses argument from the the denial of the motion affirms
dismiss.
Thermopolis, Wyoming. May 7, On Kobielusz Mrs. observed from a window burning a their home fire proper- onto their ty from north. Joe Kobielusz rushed fight fire, which, arrived, when he was pasture, pump house pow- and pole. er Joe and neighbor, Kobielusz a Legerski, Gordon out put the fire. In the fighting putting course of and out the injuries Joe Kobielusz burn suffered to his recovery for which damages feet is sought this action.
Summary judgment is a useful tool
disposing
litigation
for
in which there
are no real issues
questions
of fact that
ought to be
determined
trial. Larsen
Roberts, Wyo.,
(1984).
v.
appellant’s employee Wilson the time of this ditches. davit: tracks is a from his barns and don where a three a road Kobielusz fords observed “2. That on seen the advised me that property.” The road reached his I visited with attempting “3. Then down from his barns and over where there is a road know “Mr. Wilson has couldn’t see from there to our Legerski, fire was the railroad property. if it started down below hundred One of these running across Wilson he fire was fire property. private Willard Wilson property line. shortly after the goes crossing Wilson’s burning along the property beyond that and in his incident, Mr. Joe Kobielusz put yards buildings got over the he had been road. about burning approximately track, Herefords goes out Erwin a road ditches ran toward place deposition, stated: north of the Joe from the Wilson stated the north side of a fire that A May up you I to the railroad At that witness, Gor- tracks. in the area why Stoffers, an think, day in his affi- couldn’t, I that. the tracks injured Ranch at roadway, I didn’t goes up and he it was Here- time And But had I I This fire also fire. Gordon Joe Kobielusz a conversation with onto the was an The conversation occurred Legerski testified cerning the fire on After ness stated: follows: you reason they were edge of the started along property, “Everyone “ * * * started that did. “A. One “A. “As far “Q. “Q. “A. [*] being Both Joe Kobielusz know, the men Now And Erv Stoffers. Well he employee of Wilson property of Joe Kobielusz. they left.” said as I know on Willard’s according to Ed.” burning their ditches who is that? [*] told of his hired why do right-of-way was at Legerski stated spread to the south and pasture that he testified fire? said just not to [*] 7,May their it started on Willard’s you think Wilson dinner and Erwin Stoffers con thought the fire was ** were, in his speculate, [*] property, or depositions men told shortly there 1980. Stoffers so that’s the and Gordon deposition as that Stoffers at the time. God, Joe, I [*] Mr. along the [bjecause after gone the wit- me he about [*] east so, up And I up like this. you laid to see hate there.” well, him, I says asked wonder who or servant of Wilson started that fire there. And he told me matter within the of his employment during did. made the existence they Rule inadmissible First, mony davits Willard Wilson and The affirmative and uncontradicted testi- Wilson Appellee merely it." “(d) A tiff to create an issue was there dicted tractor, missible stand “[T]he “A. “Q. did not start the fire of 801(d)(2)(D),W.R.E., provides: to which [*] the statements of Staffers are not it, (Emphasis added.) Herefords which No, Did he someplace, doing something against testimony statement is not evidence relied raised inferences that is Staffers? he hearsay, speculation Wilson states he was [*] hearsay said. appellees say affirmative and uncontra- to the riding And he seen him he as upon by the refer are the affi- # contrary.” hearsay appellees which they anything tractor position employees May either, n or at state if: 7, around claim. to be: plain- to do start 1980. best, inad- 5fc not pany ny, They that he that Wilson statements, lees state that come for they Legerski are effect statements at some other affidavits unequivocal ence in the drawn well ferences “[e]ven Appellees, nevertheless, contend that the supra, *4 purposes further contend that this inference cite Blackmore v. Davis Oil v. by relationship. established did not start the fire. MacNeel, stage all from assuming the direct statement of Wilson which reason, disappear started the * * is to admissible of statements contained plaintiffs Staffers summary judgment, quoted supra, create evidence, Wyoming it facts that Unless excludable for proceedings in the fire of May from Forbes Com- a 382 P.2d at presented, reasonable favor evidence. including appear Kobielusz and inference law, face Thus, such in- Compa- 7, 1980; at 57, under infer- these over- least only be is, proposition, stating: this court “(2) against The statement offered a is contrary testimony “Inferences to direct * * * (D) by party and is his a statement support are ordinarily not sufficient to a or servant a matter finding.” employ- within the of his or An inference is said to be: ment, during made existence of the process reasoning by which a “[A] * * relationship *.” proposition sought fact or estab be hearsay Such is statement not because its lished logical is deduced as a conse depend upon admission does not trustwor- quence facts, other from or a state of * n n upon phi- thiness necessity nor but basic facts, already proved or admitted. losophy system adversary that what- law, “In generally the term has been a party says ever to an does action conclusion, meaning defined as de should be receivable in evidence * * duction, *.” that which is inferred Mueller, him. 4 Louiselle and Federal Evi- 43 C.J.S. Inference at 703. dence 411 59. fire at At the time the § is said that: 7, 1980, occurred, May Staffers was Erwin “All evidence must involve an inference employed by as a Wilson. On ranehhand proposition from some fact for day this incident he had been occurred proved. feeding employed livestock. Ranchhands n ! n ! n n Sfc by by Wilson irrigation cleared ditches irrigated crops through truly weeds and “A evi- reasonable inference Thus, based, those ditches. made dence which the statements as the matter on it is by guess; Erwin presumption Staffers to Kobielusz and and is not mere by Legerski appropriate proved Gordon were from facts statements inferences evidence, may subject interpreta- but are be to different not a low order are tions; but, jury.” that is for Murray as evidence as statements just as valid State, weighed by eye-witnesses and are to be along with the other evidence jury In this case the evidence before the strong enough to may it and before summary judgment court on established a outweigh positive and direct oral state- practice cleaning irrigation ditches they ments. Whether or not should be burning May year. weeds around of each positive and direct permitted to overcome Appellant’s evidence was case, testimony depends, every on the weeds, undisputed and it was strength one or the oth- relative May he burned weeds in of 1982 that re 32A Evidence 1044. er.” C.J.S. § substantially sulted fire similar to the MacNeel, May one that occurred in Company supra, of 1980 when
Forbes appellant injured. employee are An ordinarily holds that inferences over- Wilson, shortly Ordinarily May direct evidence. after the 1980 fire come But, always appellant informed that the fire had proposition is correct. it is started good judgment point on Wilson’s and at one ad so for common sense and suppose an vised him that he example, For had seen Wilson start the tell us otherwise. True, following starting fire. Wilson denied automobile is rear-ended persons employed by whose vehicle was as did all of the him vehicle. The driver identify by at the time. It did not see and cannot is also true Stoffers struck deposition differently the car that hit testified from his direct evidence the driver of *5 However, just per- differently filed in this him. if there was one affidavit case and Legerski following person and that from what Kobielusz and claim he son in the vehicle testimony immediately differing after the said to them. This and exited- the vehicle collision, per- merely created conflicts which it inferred that evidence be following summary judg of the vehicle could not be resolved son was driver Now, if the ment. at the time of the collision. exiting following vehicle denied
person passing, we note that there was also driver, would categorically that he was the light most when viewed favor- evidence inference that direct evidence overcome the appellant to that would have estab- able of law? that he was the driver as a matter the fire started on Wilson’s lished say Surely it would bad law for us to be in the area at property, that Wilson was so. that was it, have known of the time and should We have heretofore said: employee Stoffers knew of the any effort to that neither of them made ordinarily consists of “Direct evidence that it did not control the fire or assure testifying directly of their own witnesses property Appel- another. knowledge spread ultimate facts to the as to the * * * lant, citing Douglas 'Circum- the Town v. Niel- sought proved. sen, collateral contends proof stantial evidence is the give duty from on the facts and circumstances which that these facts rise to conclusion that the the fire part mind arrives at the of the landowner to control sought fact oth- spread main fact to be established to the lands of prevent its is a new Appellees object existed.’ this ers. ily inferior to direct evidence. persuasive. instances it “Circumstantial evidence Sjc may * * * ijc be Circumstances, when stronger is not necessar- [*] In some more [*] matter not unable arguments were not curred. argument to say presented to the trial from summary judgment. reported and we the record what court at The are oc- or not the not know whether in their We do together and considered taken facts, establish the developed, will in- totality together with all reasonable We therefrom, appellant contends. duty for which may ferences that be drawn question need not decide that here for in Stoffers be admissible hearsay pur would disputed 801(d)(2)(D) this questions case there were Wyoming suant to Rule of the preclude entry material fact which Rules of Evidence. does not seem me summary judgment. Reversed and re- Stoffers, that this statement was made proceedings manded for further consistent servant, admittedly Wilson’s opinion. with this about a the scope matter within of Stof- agency employment. fers’ Examples THOMAS, Justice, specially Chief con- the employee’s situations which state curring. properly ments were found admissi ble are I recited Mahlandt v. concur in the result of this Wild Canid case be- Center, Inc., cause it me Survival and Research does seem to that the circum- (8th Cir.1978). questions F.2d I require stances do create would fact with re- spect proponent liability permit- pur to the Wilson for of such statement for ting poses summary judgment fire which initiated on his property to establish escape go onto the owned matter about which the statement scope Kobielusz. As I understand this record made was within of the there is information from which employment one could or declarant. I do or, conclude perceive that Wilson either knew in being adequate record care, exercise of reasonable should purpose. have known of the existence of the fire. There
then appear questions to be factual respect duty a breach on the
part of Wilson to contain fire.
I join cannot in the full case,
majority opinion in this because
have doubts that the statements made