Roucher v. Traders & General Insurance Company

Decision Date20 July 1956
Docket NumberNo. 16005.,16005.
Citation235 F.2d 423
PartiesWilliam Edward ROUCHER v. TRADERS & GENERAL INSURANCE COMPANY, Dallas, Texas.
CourtU.S. Court of Appeals — Fifth Circuit

Joseph A. Gladney, Baton Rouge, La., for appellant.

Calvin E. Hardin, Jr., Baton Rouge, La., Bert E. Durrett, Wallace A. Hunter, Charles H. Dameron, Baton Rouge, La., of counsel, for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

The district court granted summary judgment for the defendant, appellee, in an automobile negligence action, apparently upon the ground that there was no genuine issue as to the non-negligence of the defendant's insured, Joseph H. Hicks. That conclusion the district court reached solely as the result of evidence taken upon a trial involving the same accident, and held by a Louisiana state court not to show negligence on the part of said insured. Hicks v. Tilquit, La.App., 82 So.2d 100. The plaintiff was not a party to such former action and strenuously objected to the admissibility in this case of the evidence therein taken or of the result of such trial.

It is not claimed, as of course it cannot be See Smith v. Chadick-Hayes Co., 19 La.App. 523, 139 So. 689; Westmoreland v. Mississippi Power & Light Co., 5 Cir., 172 F.2d 643; Park-In Theatres v. Waters, 5 Cir., 185 F.2d 193, that the judgment of the state court is res judicata of this action. The defendant would obtain the same result by having the evidence taken in the state court establish that there is no genuine issue of fact in this case.

The question of defendant's liability cannot be lawfully withdrawn from the jury and determined by the court unless the facts are not only undisputed but are also such that all reasonable men, in the exercise of a fair and impartial judgment, must draw the inference and conclusion therefrom of non-negligence. Wright v. Paramount-Richards Theatres, 5 Cir., 198 F.2d 303; 38 Am.Jur., Negligence, § 345. Issues of negligence are ordinarily not susceptible of summary adjudication. 6 Moore's Federal Practice, § 561.17(42), p. 2232.

For affidavits to be admissible on motion for summary judgment, they must be "made on personal knowledge." Rule 56(e), Fed.Rules Civ.Proc. 28 U.S. C.A. Generally speaking, the admissibility of evidence on motion for summary judgment is subject to the provisions of Rule 43(a); that is, evidence inadmissible on a hearing of the case would generally be inadmissible on a motion for summary judgment, except that the court may hear the matter on affidavits, Rule 43(e).

In the present case, there are no affidavits from the witnesses on the other trial. It was thought sufficient simply for one of the attorneys to make an affidavit in which he referred to the testimony on that trial. The testimony of witnesses as given on the trial of a case to which neither the present plaintiff nor anyone representing or in privity with...

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  • Reeves v. Thigpen
    • United States
    • U.S. District Court — Middle District of Alabama
    • March 16, 1995
    ...102 S.Ct. 427, 70 L.Ed.2d 236 (1981); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 661 (5th Cir.1976); Roucher v. Traders & General Ins. Co., 235 F.2d 423 (5th Cir. 1956).11 The latter argument seems to be that even if hearsay is appropriately included in an affidavit submitted in op......
  • Gross v. Southern Railway Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 30, 1969
    ...R. Co., 5 Cir. 1955, 224 F.2d 1, 5; Taff v. Singer Sewing Machine Co., 5 Cir. 1964, 331 F.2d 405, 407; Roucher v. Traders & General Insurance Co., 5 Cir. 1956, 235 F.2d 423, 424; Stace v. Watson, 5 Cir. 1963, 316 F.2d 715, 716. See also, 6 Moore's Federal Practice, § 561.17(42) p. 2232. The......
  • Knighten v. American Auto. Ins. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 31, 1960
    ...jury For determination of the facts and the application of the proper law. In this connection, see also Roucher v. Traders & General Insurance Co., 5 Cir., 1956, 235 F.2d 423, 424, wherein it was stated: 'The district court granted summary judgment for the defendant, appellee, in an automob......
  • Mistretta v. SS Ocean Evelyn
    • United States
    • U.S. District Court — Eastern District of New York
    • August 24, 1964
    ...114, 232 F. 2d 371 (D.C.Cir.1956); Aetna Insurance Co. v. Cooper Wells & Co., 234 F.2d 342 (6th Cir. 1956); Roucher v. Traders & Gen. Ins. Co., 235 F.2d 423 (5th Cir. 1956); Furlong v. Stichman, 24 F.R.D. 400 Tripp in the 1955-1962 cumulative supplement to his "A Guide to Motion Practice" w......
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