Carantzas v. Iowa Mutual Insurance Company, 15892.

• Decision Date: 05 September 1956
• Docket Number: No. 15892.,15892.
• Citation: 235 F.2d 193
• Parties: Dena A. CARANTZAS, as administratrix of the Estate of Antonios K. Carantzas, deceased, DeSoto Liquor Stores, Inc., and Ann V. Thompson, Appellants, v. IOWA MUTUAL INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

235 F.2d 193 (1956)

Dena A. CARANTZAS, as administratrix of the Estate of Antonios K. Carantzas, deceased, DeSoto Liquor Stores, Inc., and Ann V. Thompson, Appellants, v. IOWA MUTUAL INSURANCE COMPANY, Appellee.

No. 15892.

United States Court of Appeals Fifth Circuit.

August 3, 1956.

Rehearing Denied September 5, 1956.

Harry T. Gray, Geo. E. Turner, Francis P. Conroy, Sam R. Marks, Jacksonville, Fla., Marks, Gray, Yates & Conroy, Jacksonville, Fla., of counsel, for appellants.

Charles Cook Howell, Charles Cook Howell, Jr., Jacksonville, Fla., Howell & Kirby, Jacksonville, Fla., of counsel, for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

A. K. Carantzas, a resident of Jacksonville, Florida, owned a 1941 Chevrolet automobile. On November 26, 1951, he was issued a policy of automobile liability insurance with limits of $25,000 and $50,000, by Iowa Mutual Insurance Company, with respect to the 1941 Chevrolet. The policy was for a one-year term. It was issued through Mutual Insurance Agency, of Jacksonville Beach, Florida, operated by Mrs. Margie Musseau. Carantzas was of Greek origin and Mrs. Musseau was of Greek descent. She had known Carantzas and his wife for fourteen or fifteen years, since she was in her early teens. At one time she was in his employ. Before opening her own insurance agency, she had solicited insurance from Carantzas for a Jacksonville insurance firm by whom she was employed. Carantzas was the president, treasurer and sole stockholder of DeSoto Liquor Stores, Inc.

On January 11, 1952, Carantzas purchased for and in the name of his corporation a 1950 Chevrolet, trading in the 1941 Chevrolet, the title to which was in his name, as a part payment and paying the balance with a check of the corporation. On July 28, 1952, the 1950 Chevrolet, while being operated by Carantzas, collided with a truck on which Nance Norman Thompson was riding. In the collision both Carantzas and Thompson were fatally injured. The widow of Thompson brought suit against Dena A. Carantzas, the widow and administratrix of Carantzas and against DeSoto Liquor Stores, for the wrongful death of Thompson.

The administratrix and the corporation gave notice to the insurance company of the suit, claimed that the policy had been or should have been transferred from Carantzas to the corporation and from the 1941 Chevrolet to the 1950 Chevrolet, asserted that the corporation was insured against liability arising out of the operation of the 1950 Chevrolet, and demanded that the insurance company assume liability and defend the Thompson suit. The insurance company brought suit for a declaratory judgment determining that it has no insurance or insurance liability on the 1950 Chevrolet, naming as defendants the widow, Mrs. Carantzas, as administratrix of her late husband's estate, the corporation, DeSoto Liquor Stores, Inc., and Ann V. Thompson, the widow of Nance Norman Thompson. The corporation answered asserting liability of the insurance company, alleging that since the suit was filed it had paid Mrs. Thompson $31,500, and by counterclaim sought recovery of $25,000. In like manner the administratrix sought judgment for $2,000 for medical benefits. The insurance company filed a motion for a summary judgment. The district court found there was no genuine issue as to any material fact and gave judgment for the plaintiff insurance company. The counterclaim of DeSoto Liquor Stores was dismissed. On appeal from this judgment the cause comes before us.

Before the district court affidavits and depositions were filed in support of and in opposition to the motion for summary judgment. The salesman who handled for an automobile dealer the sale to DeSoto Liquor Stores of the 1950 Chevrolet stated that he made delivery of the car to it at its place of business and then informed Carantzas that since there was no financing of the deal there was no insurance on the car. Carantzas said he had insurance on the 1941 car and he would call his insurance agent and have it transferred to the 1950 car. The salesman called the office of the dealer and procured the motor and serial numbers of the 1950 Chevrolet. Carantzas then made a telephone call and the salesman heard his part of the telephone conversation. The salesman could tell, so he said, from the tone of Carantzas' voice, the manner of his speech and the expressions he used that the person with whom he was talking was an intimate acquaintance. The salesman recalled that Carantzas, after some personal conversation, told the person with whom he was talking that he had sold the 1941 Chevrolet and bought the 1950 Chevrolet, gave its motor and serial number and requested a transfer of the insurance.

One of the employees of DeSoto Liquor Stores testified that Carantzas had told him that he had transferred the insurance to the 1950 car. Mrs. Carantzas said that her husband had told her that he had given Mrs. Musseau notice to transfer the insurance. We think it was properly held that this testimony of the corporation's employee and Mrs. Carantzas did not come within any exception to the hearsay rule and it should be excluded.

Mrs. Musseau denied having any conversation with Carantzas regarding the transfer of insurance and stated that she had no knowledge during Carantzas' lifetime that the 1941 Chevrolet had been disposed of and the 1950 Chevrolet acquired. In the file of Mrs. Musseau is a memorandum in her handwriting containing a description of the 1950 Chevrolet, the date of the purchase, the name of the dealer from whom it was purchased, the name of Carantzas and the name of DeSoto Liquor Stores, Inc. On this memorandum was a notation "Reported by James Stelts July 29th, 1952". Mrs. Musseau said she obtained the information in a telephone conversation with Stelts, an insurance adjuster. The somewhat vague testimony of Stelts presents a doubt, at least, as to whether he had any detailed information about the 1950 Chevrolet at the time of his conversation on July 29th with Mrs. Musseau.

The district court found that the testimony of the employee of DeSoto Liquor Stores and Mrs. Carantzas was hearsay; that the testimony of the automobile salesman did not indicate to whom Carantzas was talking and hence did not prove notice to Mrs. Musseau or any other agent of the insurance company.

On many occasions this Court, as well as others, has declared the purposes, nature and effect of the summary judgment rule. Rule 56, Fed.Rules Civ. Proc. 28 U.S.C.A. It was succinctly stated by this Court that "the summary judgment rule is a salutary one for the purpose of avoiding unnecessary trials, that is, trials where there is nothing of fact to be tried." Sartor v. Arkansas Natural Gas Corporation, 5 Cir., 1943, 134 F.2d 433, 436. The Sartor case was reversed by the Supreme Court of the United States, it holding a summary judgment should not have been granted. By that Court it was said:

"The Court of Appeals below heretofore has correctly noted that Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 728, 88 L.Ed. 967, rehearing denied 322 U.S. 767, 64 S.Ct. 941, 88 L.Ed. 1593.

Of similar effect is our holding that:

"Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. authorizes its use only where the pleadings, depositions, and admissions on file, together with the affidavits, show 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. Its purpose is not to cut litigants off from their right to trial by jury. On the contrary, it is to carefully test this, to separate the mere formal from the substantial, to determine what if any issues of fact are present for a jury to try, and to enable the court to expeditiously dispose of cases by giving judgment on the law where the material facts are not in dispute." Surkin v. Charteris, 5 Cir. 1952

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