Gauck v. Meleski, No. 21158.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JONES and GEWIN, Circuit , and ESTES
• Citation: 346 F.2d 433
• Parties: Anna GAUCK, as Executrix of the Estate of Clarence H. Gauck, deceased, and individually as surviving spouse of Clarence H. Gauck, deceased, Appellant, v. John MELESKI and Commercial Carriers, Inc., Appellees.
• Decision Date: 03 June 1965
• Docket Number: No. 21158.

346 F.2d 433 (1965)

Anna GAUCK, as Executrix of the Estate of Clarence H. Gauck, deceased, and individually as surviving spouse of Clarence H. Gauck, deceased, Appellant,
v.
John MELESKI and Commercial Carriers, Inc., Appellees.

No. 21158.

United States Court of Appeals Fifth Circuit.

June 3, 1965.

346 F.2d 434

W. Dexter Douglass, Tallahassee, Fla., for appellant.

Loyd C. Hilton, Jr., and Barron & Hilton, Panama City, Fla., for appellees.

Before JONES and GEWIN, Circuit Judges, and ESTES, District Judge.

GEWIN, Circuit Judge:

The question presented for decision in this diversity-personal injury action is whether the district court properly determined that the affidavits and exhibits filed by both parties in connection with the defendant's motion for summary judgment revealed no genuine issue of material fact which would warrant submission of the case to a jury.

The controversy arose out of a collision between two trucks in which plaintiff's decedent received injuries from which he died ten days later. Decedent's father, who was riding in the truck with decedent, died that night from injuries sustained in the collision. The accident occurred about one-half mile from the town of Compass Lake, Florida, on U.S. Highway 231, at approximately 6 P.M. on December 17, 1959. The defendant, John Meleski, was driving a truck belonging to the defendant Commercial Carriers, Inc., which collided with a pick-up truck driven by plaintiff's decedent, Clarence H. Gauck. Both vehicles were traveling southward on a two-lane highway. It was raining. The defendant Meleski was driving a tractor truck which was pulling a trailer loaded with four automobiles. One affiant estimated the length of the tractor truck and trailer to be thirty-five feet and its weight to be about ten tons. According to Meleski, his vehicle traveled about five hundred feet beyond the point of impact; and he stated that bags of cement in the pick-up truck burst when the impact occurred. Meleski estimated the speed of the pick-up truck at thirty miles per hour. He did not give the speed of his own vehicle in miles per hour but stated, "I was driving at a safe rate of speed for the conditions. * * *" On December 1, 1961, Anna Gauck, as executrix and surviving spouse of the decedent, filed an amended complaint against Meleski and Commercial Carriers, averring that Meleski negligently crashed his truck into the rear of the truck being driven by the deceased. The defendants answered, denying negligence and alleging contributory negligence on the part of the plaintiff's decedent.

346 F.2d 435

On July 31, 1962, defendants filed their first motion for summary judgment which was supported by defendant John Meleski's affidavit. In substance, this affidavit stated that Meleski, while traveling at a reasonable rate of speed, attempted to overtake and pass the Gauck truck and that, without any prior signal, the Gauck truck suddenly turned across the left-hand side of the road into the path of the truck which Meleski was driving, causing the collision in question. The trial court denied this motion without prejudice on October 18, 1962. Subsequently, defendants took additional affidavits and filed a second motion for summary judgment on December 26, 1962. Plaintiff filed no counter affidavits, and on January 7, 1963, the court granted this second motion for summary judgment. The Court stated in its order:

"There is no genuine issue as to any material fact and * * * the defendants are entitled to a judgment as a matter of law in that the averments of defendants\' driver to the effect that the vehicle operated by the plaintiff\'s deceased spouse did not give any signal whatsoever prior to or while turning across his left-hand side of the road, said absence of signal being a clear proximate cause resulting in the damages sustained, and under the law of the State of Florida this constituted contributory negligence barring recovery; * * *."

On March 27, 1963, plaintiff filed a motion, supported by numerous affidavits, to vacate the previous summary judgment under Rule 60(b), Fed.R.Civ.P.¹ The trial court reopened² the summary judgment on September 16, 1963. After considering all the affidavits and exhibits filed to that date, he again concluded that there was no genuine issue as to any material fact. Hence, he regranted defendants' motion for summary judgment for the reasons set forth in his previous order.

Our task then is to determine whether a genuine issue of fact is raised by the affidavits and exhibits filed by the parties in the reopened summary judgment proceeding. The summary judgment

346 F.2d 436

ment procedure may not be invoked where there is a bona fide factual dispute between the parties. It is well settled that the court's duty is limited to determining whether factual issues exist, not in determining the issues themselves. See Slagle v. United States, 228 F.2d 673 (5 Cir. 1956)

In United States v. Diebold, Inc. (1962), 369 U.S. 654, 82 S.Ct. 993, 8 L. Ed.2d 176, the Court said that "the inferences to be drawn from the underlying facts contained in the materials presented must be viewed in the light most favorable to the party opposing the motion" and where the "materials * * * raised a genuine issue as to the ultimate facts material * * *", summary judgment was improper.

Rule 56(e) was amended effective July 1, 1963, to provide that:

"* * * when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this

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