Cunningham v. Securities Investment Co. of St. Louis

• Decision Date: 23 May 1960
• Docket Number: No. 18200.,18200.
• Parties: Mrs. Lillian Marion CUNNINGHAM, Appellant, v. SECURITIES INVESTMENT CO. OF ST. LOUIS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F.2d 600 (1960)

Mrs. Lillian Marion CUNNINGHAM, Appellant, v. SECURITIES INVESTMENT CO. OF ST. LOUIS, Appellee.

No. 18200.

United States Court of Appeals Fifth Circuit.

May 23, 1960.

Howard W. Lenfant, New Orleans, La., for appellant.

Floyd J. Reed, Jos. S. Kluchin, Jr., New Orleans, La., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

HUTCHESON, Circuit Judge.

On November 11, 1958, plaintiff sued defendant alleging an invasion of her privacy. The basis of the alleged invasion of privacy was that while she was in Touro Infirmary recovering from a heart attack, defendant's agent inquired of her physician on the telephone whether or not he could speak to her about her past due automobile notes. The request was refused by plaintiff's physician, who, however, gave the message to her son, who, in turn, did nothing about it.

Plaintiff's claim was: that, when some several months later she learned of defendant's inquiry, she suffered a setback in recovery; and that the basis of this setback was that she did not want her physician to know of her financial position.

Defendant filed an answer and took depositions of plaintiff and her physicians.

On the basis of this discovery defendant filed a motion for summary judgment.¹ The motion was argued, whereupon plaintiff's counsel requested and received additional time to file rebuttal evidence and cross affidavits, but did not file any controversion. In due course the matter was submitted on the undisputed facts set out in note 1, supra, and the district judge entered summary judgment² for defendant.

Here urging upon us in a single specification of error that "the court erred in deciding the case upon a motion for summary judgment without learning all the facts in the case and consequently without full knowledge of the true circumstances which give rise to the cause of action", plaintiff-appellant insists that she was "in effect deprived of her day in court". By thus standing on her pleadings, without controverting the case made by defendant in support of its motion, she is apparently of the opinion that by abstaining from controversion of defendant's showing, and, therefore, in effect refusing to participate in the proceedings for summary judgment, she could and did abort the trial on the merits by summary judgment. This is made even plainer by the further statements in the specification of error:

"The facts as pleaded in plaintiff\'s petition definitely establish a cause of action under Louisiana law as well as the general law throughout the country. The Trial Court erred in not giving plaintiff her day in court and an opportunity to present all of the facts upon which the action is based." (Emphasis supplied.)

In so urging, appellant goes contrary to Rule 56, 28 U.S.C.A., and the law of the cases as it is settled in this circuit and generally elsewhere.

In American Insurance Co. v. Gentile Bros. Co., 5 Cir., 109 F.2d 732, 735, where the appellant, as here, did not file counter-affidavits controverting the facts set forth in the depositions and affidavits and made no effort to show that controverting facts, if any, could be presented at a later time, this court said:

"Faced with the motion for summary judgment the appellant did not file counter-affidavits. * * * When the motion for summary judgment was heard there was no genuine issue as to any material fact and the court properly entered judgment for the plaintiff. Rule 56 Rules of Civil Procedure for the District Courts."

Moore's Federal Practice, in its accurate and thorough commentary on summary judgment procedure, as it is set out in the rules and established in the cases, shows how lacking in substance is appellant's contention that she has been unjustly deprived of a trial on the merits:

"The summary judgment procedure prescribed in Rule 56 is a procedural device for promptly disposing of actions in which there is no genuine issue as to any material fact. In many cases there is no genuine issue of fact, although such an issue is raised by the formal pleadings. The purpose of Rule 56 is to eliminate a trial in such cases, since a trial is unnecessary and results in delay and expense which may operate to defeat in whole or in part the recovery of a just claim or the expeditious termination of an action because of a meritorious defense that is factually indisputable. `The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial\'. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 45 A.L.R. 1041.

"To attain this end, the rule permits a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, and admissions on file show that there are no genuine issues of material fact to be tried. To illustrate. Where defendant submitted an affidavit on a motion to dismiss and the court gave plaintiff an opportunity to submit counter-affidavits the motion to dismiss was converted into one for summary judgment and the complaint was properly dismissed where there was no genuine issue of fact in controversy. As Judge Bone stated in Lindsey v. Leavy 9 Cir. 149 F(2) 899 the sufficiency of the allegations of a complaint do not determine the motion for summary judgment for `if this were not the case, Rule 56 would be a nullity for it would merely duplicate the motion to dismiss\'. Even though an issue may be raised formally by the pleadings, summary judgment may be granted if there is no genuine issue of material fact. The court is authorized to examine proffered materials extraneous to the pleadings, not for the purpose of trying an issue, but to determine whether there is a genuine issue of material fact to be tried. If there is no such genuine issue, the parties are not entitled to a trial and the court, applying the law to the undisputed material facts, may render a summary judgment. * * *." Section 56.04(1) pp. 2028-2030, Vol. 6 (Emphasis supplied.)

"* * * Although the trial court in the exercise of a sound discretion may decline to grant summary judgment, even though the movant has technically discharged his burden, the trial court will normally not look with indulgence upon a party who has presented neither evidentiary materials in opposition nor any reason for his failure so to do. Further, it is certainly well settled that the opposing party is not entitled to hold back his evidence until trial, and is not entitled to a trial on the possibility that an issue of material fact might arise if the case were to go to trial on the merits. Nor as a general rule is an appellant entitled to overturn a summary judgment by raising an issue of fact not plainly disclosed in the trial court. And where the moving party has discharged his burden and on the record is entitled to summary judgment, the trial court\'s refusal to grant the opposing party a continuance or other related relief will not be interfered with by the appellate court, except where the trial court has abused its discretion. Section 56.23 pp. 2340-2341, Vol. 6 id., citing Surkin v. Charteris 5 Cir., 197 F(2) 77." (Emphasis supplied.)

In the case of Surkin v. Charteris, cited above, at page 79, this court, in an opinion which has been universally cited...