Bradley v. Associates Discount Corp.

• Decision Date: 10 November 1953
• Parties: BRADLEY v. ASSOCIATES DISCOUNT CORP. et al.
• Court: Florida Supreme Court

Page 913

67 So.2d 913

BRADLEY v. ASSOCIATES DISCOUNT CORP. et al.

Supreme Court of Florida, Division B.

Nov. 10, 1953.

Rehearing Denied Dec. 4, 1953.

Fleming, O'Bryan & Fleming and Boyd H. Anderson, Jr., Fort Lauderdale, for appellant.

McCune, Hiaasen & Kelley, Fort Lauderdale, for appellees.

THOMAS, Justice.

This controversy is not new. In the first trial the appellant secured a verdict against Emmco Insurance Company and the judge granted a motion for new trial because he was convinced that he had erred in one of his charges to the jury. Upon appeal we affirmed his ruling. Bradley v. Associates Discount Corp., Fla., 58 So.2d 857. In effect he had charged the jury that liability under the policy would not determine unless the plaintiff, appellant, received actual notice of cancellation before the loss was sustained. We held that the charge did not conform to the pertinent provision of the insurance contract, that could be abrogated 'by mailing to the Named Insured [Associates Discount Corporation, transferee of seller of the car] and to the Purchaser or Borrower [appellant] * * * written notice stating when not less than five (5) days thereafter such cancelation [sic] shall be effective.' It was our conviction that the quoted language was so unambiguous as to offer no occasion for the application of the rule of strict construction or, therefore, for the charge given.

Upon return of the mandate, based on the decision in the cited case, the insurance company presented its motion for summary judgment, and it was granted. The judge recited the 'submission [by counsel] of a portion of the transcript' of the former trial and his 'consideration of the pleadings and exhibits.' He concluded from these, from the agrument of counsel and from the opinion of this court, that there was 'no genuine issue of fact to be tried before the jury' hence, as a matter of law, summary judgment was justified. This appeal was taken from the summary judgment.

When the controversy was decided in this court and the mandate was issued to the circuit court the case was then ready for trial as if none had hitherto been held except, that one defendant, Associates Discount Corporation, seems to have been eliminated because there was a verdict against Emmco Insurance Company and none against Associates Discount Corporation. Incidentally, the appeal was taken only from the order granting the insurance company's motion for a new trial. We are not, and were not then advised whether a judgment was entered in favor of Associates Discount Corporation.

The motion for summary judgment was as appropriate at the threshold of the second trial as it would have been at the beginning of the first. Our decision, then must primarily depend on the absence or presence of a real issue of fact on the eve of the second trial, and, secondarily, on the manner of supporting the motion.

We have re-examined the record in the former appeal and have studied again the opinion we rendered then. From the information gained we are still convinced that a vital point in the litigation was, and is, the kind and effect of the notice with reference to the cancellation of the insurance contract. This question of law was decided contrary to appellant's contention and we find no occasion to disturb the ruling in that respect.

But after a perusal of the records in both appeals, we cannot agree that the circuit judge's adherence to our mandate necessarily resulted in reducing to one the genuine...