Cross v. Hair

• Decision Date: 01 October 1969
• Citation: 258 A.2d 277
• Court: Supreme Court of Delaware
• Parties: Sherwood T. CROSS, individually and as the Administrator of the Estate of Catherine L. Cross, Plaintiff, v. Merl HAIR, Eunice Lowe, and Marjorie Coale, Defendants.

Page 277

258 A.2d 277

Sherwood T. CROSS, individually and as the Administrator of

the Estate of Catherine L. Cross, Plaintiff, v. Merl HAIR, Eunice Lowe, and Marjorie Coale, Defendants.

Supreme Court of Delaware.

Oct. 1, 1969.

Upon motion to dismiss the appeal.

Arthur J. Sullivan and Jay P. James of Morris, James, Hitchens & Williams, Wilmington, for Eunice Lowe, defendant below, appellant.

E. N. Carpenter, II, and R. H. Richards, III, of Richards, Layton & Finger, Wilmington, for Marjorie Coale, defendant below, appellee.

WOLCOTT, Chief Justice, and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice.

This is an appeal from the denial of summary judgment in an automobile negligence case. Non-agency was the issue tendered. In denying summary judgment, the Superior Court stated:

'The record reveals disputes as to material questions of fact. For example, the affidavits submitted are in conflict over the question of what control the defendant Lowe had over the driving activities of the defendant Hair.

'I am not holding that the matter of agency raised here is a jury question although after the evidence at trial has been submitted it may be decided that it is. It also may be that after the presentation of all of the evidence on this point at trial the matter will be disposed of by the Court.'

The appellee moves to dismiss the appeal on the ground that the Superior Court's denial of summary judgment did not resolve any legal right or substantial issue; that, therefore, such interlocutory order is unappealable. The appellant, on the other hand, contends that the Superior Court erred in finding that 'the record reveals disputes as to material questions of fact'; that she was thereby erroneously deprived of the summary judgment to which she is entitled under Superior Court Civil Rule 56(c), Del.C.Ann. ^* ; that such denial of legal right is appealable though interlocutory.

Under the rule now well established in this jurisdiction, there is no 'right' to a summary judgment. Unless the Trial Court is reasonably certain that there is no triable issue, it is within the Trial Court's discretion to decline to decide the merits of the case in a summary adjudication, and to remit the parties to trial. See 6 Moore's Federal Practice §§ 56.15(6) and (8). No right is thereby violated, the seemingly mandatory language of Rule 56 notwithstanding.

In the instant case, the Trial Court's lack of certainty as to a triable issue is clear from its language. The determination below was merely a decision that, in the Trial Court's judgment, this case is not one to be disposed of summarily and is one for trial. There has been no adjudication of legal right or substantial issue; and the interlocutory order, therefore, is unappealable. Malcom v. Dempsey, Del.Sup., 215 A.2d 457 (1965); Haveg Corporation v. Guyer, Del.Sup., 211 A.2d 910 (1965); Alexander Industries, Inc. v. Hill, Del.Sup., 211 A.2d 917 (1965); Wilmington Trust Company v. Pennsylvania Company, 40 Del.Ch. 1, 172 A.2d 63, 67 (1961); Sterling Drug, Inc. v. City Bank Farmers Trust Co., 38 Del.Ch. 444, 154 A.2d 156 (1959).

The appellant points out that in the Alexander Industries case, we reviewed the record on an appeal from a denial of summary judgment. It is to be noted in that case that the record was silent as to the Superior Court's reason for denying summary judgment. We...