Jacobson v. Maryland Casualty Co.

• Decision Date: 02 September 1964
• Docket Number: No. 17321.,17321.
• Citation: 336 F.2d 72
• Parties: Joseph P. JACOBSON, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

336 F.2d 72 (1964)

Joseph P. JACOBSON, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee.

No. 17321.

United States Court of Appeals Eighth Circuit.

September 2, 1964.

John M. Cleary, Kansas City, Mo., for appellant.

Rodger J. Walsh, Kansas City, Mo., Rafter, Biersmith, Miller & Walsh, Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

This appeal is from issuance of summary judgment favoring Maryland Casualty Company, appellee-plaintiff, in an action for losses allegedly suffered by Maryland, as surety, on certain indemnity agreements insuring performance of aerial photography contracts between the Joe Jacobson Flying Service and the United States Government.

Jurisdiction exists by reason of diversity of citizenship and controverted amount exceeding the statutory requirement.

We reverse on the inadequate record before us which fails to clearly reflect lack of a genuine issue of material fact.

The complaint alleged losses on bonds issued on applications therefor which were in effect contracts of indemnity, copies of which were subsequently designated in the record as Exhibits A, B, C, D and E. The complaint alleged losses on A, C, D and E and a credit on B. Jacobson signed application E as owner and signed A, B and C as indemnitor for Jacobson Flying Service, Carl C. Hughes, owner. Jacobson did not sign application D. Exhibits A, B and C were signed subsequent to the issuance of D, and E was signed by Jacobson as principal prior to execution of contract D.

On February 29, 1960, Maryland filed its request for admissions with the exhibits referred to above attached. On June 24, 1960 Jacobson answered this pleading admitting only that he had signed A, B and C in blank and that demand had been made on him but never in the amounts stated in plaintiff's request except for one item of $154.38, which represented an additional bond premium, not a loss, on Exhibit E.

On October 10, 1960, Maryland moved for summary judgment interlocutory in character under Rule 56(c), Fed.R.Civ. P. Accompanying Maryland's motion was a "Suggestion in Support" containing authorities and asserting inter alia that no substantial issue of fact existed, inasmuch as Jacobson admitted signing Exhibits A, B, C and E, all containing clauses making the indemnitor liable for all "former and subsequent bonds", executed by the parties.

On February 16, 1961, Jacobson filed an amended answer which was a general denial, admitting only that his signature appeared on Exhibits A, B and C. Jacobson also interposed an affirmative defense with respect to D alleging that the loss there was occasioned by Maryland's own fault in failing to timely provide Hughes its promised financial support to complete the principal contract. Further, Jacobson averred that he had no knowledge of the existence of D, unsigned by him in any capacity, and that he was in fact absent from the United States for months prior and subsequent to its issuance.

On March 29, 1961, the late Judge R. Jasper Smith considered Maryland's motion for summary judgment, granting its relief as to A, B and C, but denying its issuance as to D and E.¹

Thereafter on October 5, 1962 Jacobson filed a motion for summary judgment also accompanied by a "Suggestion in Support". Jacobson made no admissions in his motion but sought a favorable ruling as to liability on D which if granted would have reduced Maryland's claims to an amount below the jurisdictional requirement.

On December 14, 1962, Judge Oliver decided the case on Jacobson's motion for summary judgment by denying same, while ordering the parties to agree to a reinstatment of Maryland's motion for summary judgment, or failing such agreement, ordering Maryland to file a new motion for summary judgment as well as a precedent for formal order directing entry of judgment for plaintiff. The record next indicates that on December 26, 1962 the trial court entered judgment for Maryland in the full amount sued for with interest from July 1, 1957 plus attorney's fees.

The mission of summary judgment is to allow the trial judge to dispose of a case in advance of a hearing on the merits, when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any supporting affidavits, reveal 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. Rule 56(c), Fed.R.Civ.P. Since the remedy is extreme and not to be used as a substitute for trial, any doubt as to the existence of a triable issue of material fact must be resolved against the party moving for summary judgment. United States v. Farmers Mut. Ins. Ass'n of Kiron, Iowa, 288 F.2d 560 (8th Cir. 1961), and cases there cited; Elbow Lake Coop. Grain Co. v. Commodity Credit Corp., 251 F.2d 633 (8th Cir. 1958).

Maryland had the burden of clearly establishing the lack of genuine issue of material fact. See Walling v. Fairmont Creamery Co., 139 F.2d 318 (8th Cir. 1943) and the cases collected in Allied Mutual Ins. Co. v. Lysne, 324 F.2d 290, 293 (8th Cir. 1963). Maryland's burden cannot be discharged unless the record upon which it moved reflected beyond question the lack of a genuine issue of material fact. The record falls short in this regard. The record is silent as to any contravention of Jacobson's averment of the affirmative defense with respect to liability...