Brandt v. Springville Banking Company

WADE, Justice

(dissenting).

I dissent. This case, having been disposed of on a summary judgment should be reversed unless the showing made when considered in the light most favorable to the losing party clearly shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”1 So if the showing fails to clearly indicate that plaintiffs do not have proof which would reasonably support a judgment in their favor the judgment should be reversed.

The prevailing opinion states that we must view the evidence in the light most favorable to the losing party. However, the statements of the evidence therein contained are statements of the winning parties’ views of the evidence.

I think it clear that plaintiffs, the Brandts, could make a prima facie showing of a fiduciary relationship between them and the officers of the bank to whom they turned for advice before investing in this project. Furthermore, the evidence indicates that they could make such a showing that the bank officers knew that the Jackson business was insolvent and that they advised and arranged the loan of $10,000 to the Brandts to enable them to invest it in the Jackson business under another name with the expectation, which was later realized, that this money which the Brandts borrowed would be applied as payment to the bank on some worthless debts of the old Jackson business. Such a showing would be sufficient to shift the burden of persuasion on the defendants, the bank and its officers, that in advising the Brandts to invest in the Jackson business they did not withhold from them any pertinent information which would have a bearing on the advisability of the Brandts making the investment.2 In my opinion the fact that Mrs. Brandt is the sister of Mr. Jackson is not sufficient to prevent a fiduciary relationship between the bank and its officers and the Brandts in advising them on the advisability of investing in this project.

. See Utah Rules of Civil Procedure Rule 56(c), 9 Utah Code Ann.1953, p. 6-14; also annotation of cases in pocket supplement to this volume, Rule 56(b) and (e).

. See In re Swan’s Estate, 4 Utah 2d 277, 293 P.2d 682.