Jones v. Stoutenburgh
| Decision Date | 07 November 1956 |
| Citation | 91 So.2d 299 |
| Parties | John R. JONES, Appellant, v. Jo Ann STOUTENBURGH, Appellee. |
| Court | Florida Supreme Court |
George T. Kelly, III, Orlando, for appellant.
R. F. Maguire, Joel R. Wells, Jr., of Maguire, Voorhis & Wells, Orlando, for appellee.
Appellant Jones, who was defendant below, seeks reversal of a summary judgment entered in favor of the appellee in a statutory proceeding brought pursuant to Chapter 26949, Laws of Florida 1951, Section 742.011 et seq., Florida Statutes 1955, F.S.A.
The point for determination is the correctness of the order of the trial judge striking appellant's counter-affidavit contesting the summary judgment in view of appellant's refusal to testify on appellee's taking of his deposition on the ground of self-incrimination.
Appellee, alleging herself to be unmarried, filed her complaint against appellant. She alleged intimacies with appellant and asserted that he was the father of her child then unborn. She requested relied under the statute above cited. Appellant answered denying the allegations of the complaint and requesting trial by jury on the issue of paternity as provided by Section 742.031, Florida Statutes, F.S.A. Appellee thereupon filed a motion for summary judgment asserting that there was no genuine material issue to be tried. The motion was supported by her own affidavit substantially re-asserting the essential allegations of the complaint. She filed an affidavit by a reputable physician affirming the fact of pregnancy. The doctor's affidavit also fixed the time of conception at a time approximating the period of appellee's alleged intimacies with appellant. The appellant opposed the motion for summary judgment with a counter-affidavit by which he denied paternity of the child, denied the alleged intimate relations with appellee and asserted further that she had had such relations with numerous other men.
Appellee then sought to take appellant's deposition whereby through her counsel she undertook to interrogate him in detail on the matter of his associations with appellee, the alleged intimacies with her and other questions bearing directly on the issues. In response to these questions the appellant declined to answer by asserting the constitutional privilege against self-incrimination guaranteed to him by the Fifth Amendment to the Constitution of the United States and by Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A.
The appellee then moved the trial court to strike appellant Jones' affidavit if he continued to refuse to answer the questions. The court thereupon entered an order which provided that the defendant 'upon reasonable notice given shall appear for the purpose of having his deposition taken further and shall then have the election in his sole discretion to determine whether he wants to answer questions propounded in this examination regarding the affidavit by him filed * * * in opposition to the motion for summary judgment filed by the plaintiff and regarding the matters by him stated in said affidavit'. The judge further ordered 'that if the defendant elects not to answer said questions then his affidavit will be stricken under the power given to the Court by paragraphs E and G of Rule 1.36, Florida Rules of Civil Procedure [30 F.S.A.]'.
On a subsequent deposition hearing the appellant Jones continued to assert his privilege against self-incrimination in response to the same questions which had previously been propounded to him. There-upon on subsequent hearing the trial judge struck appellant's affidavit against the motion for summary judgment and entered the summary judgment against appellant. Reversal of this order is now sought.
Appellant contends that the order of the trial judge directing him to answer the questions as an alternative to having his affidavit stricken denied him the constitutional privilege against self-incrimination. Appellee contends that appellant had waived his privilege by filing the affidavit denying the allegations of the complaint and that at any rate his affidavit was obviously filed in bad faith and was not entitled to consideration by the court.
Preliminary to a discussion of the rules applicable, it should be noted that the only questions propounded to the appellant were such as would justify the exercise of the constitutional privilege against self-incrimination. He was not interrogated as to any other witnesses who might testify in his behalf. No effort was made to elicit from him the manner or methods of proof by which he expected to support his counter-affidavit. His alleged default in replying is based entirely on the proposition that he was entitled to assert the privilege personal to him but that if he did so he subject himself to having his affidavit stricken.
It is further interesting to note that among other things the appellant was interrogated as to various conversations with the very doctor whose affidavit appellee filed in support of her position. The affidavit of the doctor contained no statements whatsoever as to any of these conversations with the appellant.
We have consistently recognized that the summary judgment procedure authorized by Rule 1.36, Florida Rules of Civil Procedure, is designed to provide trial judges with authority to terminate litigation without the necessity of a full trial if it is apparent that there is no genuine issue of a material fact to be settled. Anderson v. Maddox, Fla.1953, 65 So.2d 299.
On a motion for a summary judgment the trial court is not authorized to try or weigh facts. Yost v. Miami Transit Co., Fla.1953, 66 So.2d 214. The objective to be accomplished is to determine the existence of a material factual issue. If such an issue is present, the motion should be denied. Johnson v. Studstill, Fla.1954, 71 So.2d 251. If there is any doubt as to the existence or non-existence of a genuine issue of a material fact, then such doubt must be...
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