Howell v. Allied Mutual Casualty Co. of Des Moines, Iowa

• Decision Date: 02 June 1961
• Docket Number: Civ. No. 01008.
• Citation: 197 F. Supp. 378
• Parties: James E. HOWELL, Plaintiff, v. ALLIED MUTUAL CASUALTY COMPANY OF DES MOINES, IOWA, a mutual insurance company, Defendant.
• Court: U.S. District Court — District of Nebraska

197 F. Supp. 378

James E. HOWELL, Plaintiff, v. ALLIED MUTUAL CASUALTY COMPANY OF DES MOINES, IOWA, a mutual insurance company, Defendant.

Civ. No. 01008.

United States District Court D. Nebraska.

June 2, 1961.

Thomas J. Walsh, Haney & Walsh, Swarr, May, Royce, Smith, Andersen & Ross, Omaha, Neb., for plaintiff.

Harry L. Welch, Harold W. Kauffman and Gross, Welch, Vinardi, Kauffman, Schatz & MacKenzie, Omaha, Neb., for defendant.

DELEHANT, District Judge.

This action is before the court upon a motion for summary judgment (filing 8) served and filed by the defendant. Ruling upon it must be premised upon plaintiff's complaint (filing 1), defendant's answer (filing 6), defendant's request for admissions (filing 9), together with plaintiff's answer thereto (filing 12), plaintiff's request for admissions (filing 10), together with defendant's answer thereto (filing 11), and an affidavit of Mr. Thomas J. Walsh, one of plaintiff's attorneys (filing 13).

By virtue of an order of the court, made and given on March 27, 1961, under agreement of counsel, it was directed that the motion for summary judgment be submitted upon briefs of counsel, but with the granting of leave for the taking on or before April 9, 1961 by the plaintiff of the deposition of one John H. Schon. The deposition of Schon was not taken. No such deposition has been filed, and no request has been made for the enlargement of the time for its taking. The court, therefore, concludes that the project for its taking has been abandoned. The briefs of counsel have been served and delivered to the court. Because of certain features contained in them, they are being surrendered herewith to the clerk, who, by a separate order, is being directed to file them in the case.

At this juncture in the present action, it is appropriate briefly to recall the rule within which the motion is tendered, and the standards which have been judicially developed and are consistently accepted for its administration. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., erects a comprehensive procedure through which, in appropriate circumstances, a party litigant may seek, and, if the record warrants, obtain a summary judgment in his, her or its behalf, sometimes in respect of the entire subject of litigation, on other occasions, upon a portion only of the matter or matters in controversy.

By Rule 56(b), it is provided:

"(b) For Defendant Party. A party against whom a claim, counterclaim, or cross-claim is asserted * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

Rule 56(c) has to do with motions for summary judgment generally alike, one made in behalf of a claimant, and one sought by a defending party. In its presently material part it provides:

"* * * The judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, 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." (Emphasis added.)

The language just underscored is the presently vital part of the rule. For, in a single sentence, it defines the test, for failure to comply with which, a motion for summary judgment must be denied, but, by meeting which, a moving party establishes his right to the relief he seeks. It is to be observed, too, that to entitle a moving party to a summary judgment, it must be established both (a) that there is no genuine issue as to any material fact, and (b) that the moving party is entitled to a judgment as a matter of law. Unless both of those propositions be established, the motion must be denied. But, if they be established, it must be granted.

It should be observed briefly that the rule has consistently been administered strictly. By which is meant that stern judicial insistence has been made that a litigant who seeks, by such interception of the ordinary course of contested litigation, to obtain at an early point along the way, a final judgment in his, her or its favor must be denied the relief sought, unless the quoted twofold test for its allowance is met beyond reasonable uncertainty. So, it has been declared that, unless the moving party satisfies the court both that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law, the motion must be denied. And the court, in proceeding to its ruling upon such a motion, must resolve any doubt upon either of those branches of the moving party's burden, adversely to the moving party. So, if there be a practical doubt whether there remains a genuine issue as to any material fact, such a motion must be denied. And it must also be denied unless, from the unchallengeable facts, it necessarily follows that the movant is entitled to judgment as a matter of law. Suggestive of the many reported opinions supporting that view may be mentioned. Booth v. Barber Transportation Company, 8 Cir., 256 F.2d 927; Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213; Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167; American Insurance Company v. Gentile Brothers Company, 5 Cir., 109 F.2d 732; Ramsouer v. Midland Valley R. Company, D.C.Ark., 44 F.Supp. 523, reversed on other grounds, 135 F.2d 101; United States ex rel. Ryan v. Broderick, D.C. Kan., 59 F.Supp. 189; Chenault v. Nebraska Farm Products, D.C.Neb., 107 F. Supp. 635. But it is equally true that if both of those requirements for the granting of the motion be met, then, by the plain language of the rule itself, the judgment to which the moving party is by law entitled—though not necessarily in the way or to the extent that it is sought in the motion—must be rendered. This court is respectfully aware of the recorded history of the judicial administration of Rule 56, of which the foregoing citations are only suggestive, as it approaches the present ruling.

In his complaint, the plaintiff alleges that he is a resident and citizen of Nebraska; that the defendant is a mutual insurance company, organized and existing under the laws of the state of Iowa, and a citizen of Iowa; and that the amount in controversy exceeds the sum of $10,000, exclusive of interest and costs. Those allegations of the complaint the defendant admits in its answer. It follows that jurisdiction exists in this court. No question of its validity is presented in the submission.

The plaintiff in the complaint then, and in successive separately numbered paragraphs, makes factual averments, all of which the defendant by its answer denies. These follow:

"II. On or about March 7, 1956 defendant issued a standard Automobile Policy numbered 455 429, effective March 13, 1956 to March 13, 1957 to one Sid Moore, also known as Sidney A. Moore, whereby the defendant agreed to pay on behalf of Sid Moore as the insured, all sums which such insured should become legally obligated to pay as damages because of bodily injury, sickness or disease including death at any time resulting therefrom, sustained by any person caused by accident and arising out of the ownership, maintenance and use of a certain 1953 Ford 2-ton truck owned by the insured. The limits of liability for bodily injury provided by such policy No. 455 429 were $15,000.00 for each person and $30,000.00 for each accident; and the limit of property damage provided by such policy was $5,000.00.

"III. Thereafter, on March 14, 1956, and while such policy No. 455 429 was in force and effect, Sid Moore negligently drove his 1953 Ford truck described in and covered by such policy into a 1955 Mercury Station Wagon owned by Howell Lumber Company, and being driven by plaintiff. As a direct result of such collision and the negligence of Sid Moore, (a) plaintiff sustained severe and permanent personal injuries; (b) plaintiff's brother, Harold A. Howell, who was riding as a passenger in such Station Wagon, was killed; and (c) the Station Wagon was damaged in the amount of $2,100.00.

"IV. Thereafter, for valuable consideration, Howell Lumber Company assigned to plaintiff its claim for damages against Sid Moore arising out of such collision, and plaintiff filed suit in the District Court of Dawson County, Nebraska, against Sid Moore, under the name of Sidney A. Moore, to recover damages for plaintiff's personal injuries, and also for the injury to the Station Wagon. While such suit was pending and awaiting trial, Sid Moore died and K. G. Brumbaugh, Administrator of his estate, was substituted as a party defendant to such suit. On December 13, 1958 plaintiff, in such suit, obtained judgment against Sidney A. Moore, and therefore against K. G. Brumbaugh, Administrator of the Estate of Sidney A. Moore, Deceased, in the amount of $16,567.00 for the bodily injuries by the plaintiff sustained in such collision, and in the amount of $2,100.00 for the property damage to the Mercury Station Wagon sustained in such collision, of which judgment an allegedly true copy is set out in and incorporated into, the complaint by attachment to it.

"V. Likewise, suit was filed in the District Court of Dawson County, Nebraska by Nadine B. Howell, the surviving widow, and executrix of the estate, of Harold A. Howell, deceased, against Sid Moore, also known as Sidney A. Moore, to recover damages sustained by her as a result of the death of Harold A. Howell, and on April 1, 1958, judgment was entered in favor of Nadine B. Howell, then Nadine B. Howell Lum, against the estate of Sidney A. Moore, deceased, for the sum of $105,625.00, of which judgment an allegedly true copy is set out in, and incorporated into, the complaint by attachment to it. For valuable consideration, Nadine B. Howell Lum has assigned all of her claims arising by virtue of such judgment to plaintiff.

"VI. By reason of the facts thus alleged, defendant is obligated to pay, in behalf of the Estate of Sidney A. Moore, deceased, to the plaintiff, the sum of

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