Fish Carburetor Corp. v. Great Am. Ins. Co., C-103
| Decision Date | 10 January 1961 |
| Docket Number | No. C-103,C-103 |
| Citation | 125 So.2d 889 |
| Parties | FISH CARBURETOR CORPORATION, Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
John R. Tamm and Dan R. Warren, Daytona Beach, for appellant.
Alfred A. Green and Alfred A. Green, Jr., Daytona Beach, for appellee.
Plaintiff has appealed from a final judgment in an action at law rendered in favor of defendant pursuant to an order granting defendant's motion for summary judgment. The questioned order was rendered during the trial at the close of plaintiff's evidence. Appellant contends that the trial court was not only without authority to grant defendant's motion for summary judgment after the trial had commenced and plaintiff had completed the presentation of its evidence, but that such error was compounded by the court's finding that the evidence adduced failed to establish a genuine issue of any material fact and that defendant was entitled to judgment as a matter of law.
The record reveals that in advance of the trial defendant moved for a summary judgment. Upon hearing the motion was denied with leave granted defendant to renew its motion during the trial of the cause if the same is applicable. During the trial after plaintiff had rested its case, defendant moved for a directed verdict on the ground that plaintiff had failed to sustain the material allegations of its complaint on which its right to relief depended. The court entered an order which recites that defendant's motion for directed verdict would be considered as a renewal of its motion for summary judgment and that the court found there was no genuine issue of any material fact and defendant was entitled to summary judgment as a matter of law. The jury was thereupon discharged and final judgment entered in defendant's favor.
Summary judgment proceedings are essentially pretrial in character. Their principal function is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law. 1 The motion for summary judgment should be made and pressed at such a stage in the litigation that it will not delay the trial. 2 When in due course the trial is had on the merits, the trial itself becomes the best test of either party's right to judgment. Such right may then be determined only by the court upon consideration of a timely motion for directed verdict, or by the jury under proper instructions from the court as to the law of the case. This does not mean, however, that the motion may not be made after an appellate remand when the motion is consistent with the mandate of the appellate court. 3
An excellent comparison of the office of the motion for summary judgment with that of a motion for directed verdict was made by Judge Barns in the Warring case. 4 It is there pointed out that both motions give rise to questions of law in consideration of which the movant not only admits the basic facts established which are favorable to the adverse party, but also every conclusion or inference favorable to the adversary which might be reasonably inferred from the evidence. Implicit in the court's opinion is the holding that summary judgment proceedings are to be employed in advance of the trial, while the movant's entitlement to judgment on the evidence after the trial commences may be asserted only by motion for directed verdict. The necessity for preserving the distinction between the different stages of litigation which each of the mentioned motions may be heard and determined becomes important, among other things, in determining the items of costs to be awarded the prevailing party. While certain items of cost incurred in connection with the taking of depositions and in pursuing other discovery proceedings might be allowable to the prevailing party in a summary final judgment, the same items of cost might not be properly...
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Page v. Staley
...191 So.2d 286; Cia. Ecuatoriana De Aviacion v. U.S. & Overseas Corp., Fla.App.1962, 144 So.2d 338; Fish Carburetor Corp. v. Great American Insurance Co., Fla.App.1961, 125 So.2d 889. We feel that the rule was properly used in this instance and particularly where defendant having shown there......
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C & D Farms, Inc. v. Cerniglia, 65--724
...therefore, same have not been considered by the court. See: Regero v. Daugherty, Fla.1954, 69 So.2d 178; Fish Carburetor Corp. v. Great American Ins. Co., Fla.App.1961, 125 So.2d 889; Florida Board of Pharmacy v. Hall, Fla.App. 1963, 157 So.2d 824; 2 Fla.Jur., Appeals, § Affirmed in part; r......
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Zygmont v. Smith
...issue of any material fact, and the moving party is entitled to judgment as a matter of law." Fish Carburetor Corp. v. Great American Insurance Co., 125 So.2d 889, 891 (Fla. 1st DCA 1961), quoted with approval, Howarth Trust v. Howarth, 310 So.2d 57, 58 (Fla. 1st DCA 1975). See also, Busbee......
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Gutierrez v. Bermudez, 88-747
...to the conclusion that a motion for summary judgment may be heard once trial begins. The case of Fish Carburetor Corp. v. Great American Insurance Company, 125 So.2d 889 (Fla. 1st DCA 1961) correctly states "Summary judgment proceedings are essentially pretrial in character. Their principal......
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Chapter 12-1 Introduction
...Gutierrez v. Bermudez, 540 So. 2d 888, 890 (Fla. 5th DCA 1989) (citing Fish Carburetor Corp. v. Great American Insurance Company, 125 So. 2d 889, 891 (Fla. 1st DCA 1961)). The reasoning in Gutierrez was subsequently approved in Ameriseal of North East Florida v. Leiffer, 738 So. 2d 993, 995......