Leaseco, Inc. v. Bartlett

• Decision Date: 16 December 1971
• Docket Number: No. 70--1031,70--1031
• Citation: 257 So.2d 629
• Parties: LEASECO, INC., a corporation, and Transit Casualty Company, Appellants, v. Ernest D. BARTLETT, as husband of Marsha Gail Bartlett, Deceased, et al., Appellees.
• Court: Florida District Court of Appeals

Page 629

257 So.2d 629

LEASECO, INC., a corporation, and Transit Casualty Company, Appellants, v. Ernest D. BARTLETT, as husband of Marsha Gail Bartlett, Deceased, et al., Appellees.

No. 70--1031.

District Court of Appeal of Florida, Fourth District.

Dec. 16, 1971.

Rehearing Denied Feb. 29, 1972.

Fred M. Peed and Duncan B. Dowling, of Gurney, Gurney & Handley, Orlando, for appellants.

Ernest H. Eubanks and Robert A. Hannah, of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellee Bartlett.

Monroe E. McDonald, of Sanders, McEwan, Mims & McDonald, Orlando, for appellee Belford Trucking Co.

OWEN, Judge.

Marsha Gail Bartlett, wife of appellee Ernest D. Bartlett, was killed when the automobile which she was operating was struck head-on by a 1966 Mack Truck. The husband's subsequent wrongful death action was against Bobby Dale Bowman, the operator of the truck, and certain others alleged to be legally responsible for the negligent operation thereof. Among these was the appellant, Leaseco, Inc., alleged to be the owner of the truck, and Transit Casualty Co., Leaseco's liability insurance carrier. These latter two defendants appeal from the final judgment for the plaintiff husband entered upon a jury verdict.

In its answer to the complaint, Leaseco, Inc., denied that it was the owner of the truck at the time of the fatal accident. Prior to trial, plaintiff filed his motion for a summary judgment in his favor on this specific issue. Simultaneously, Leaseco, Inc., filed its motion for summary judgment in its favor on the same specific issue. Each motion asserted that there was no genuine issue of fact on this issue, and that the movant was entitled to judgment thereon as a matter of law. The court entered an order which granted plaintiff's motion and denied Leaseco's, declaring that Leaseco's ownership of the truck at the time of the accident was determined by the court as a matter of law. Appellants have assigned as error the entry of this partial summary judgment.

Despite their representations to the trial court that there were no genuine issues of material fact bearing on the question of Leaseco's ownership of the truck, appellants now assert on this appeal that the facts on this issue were in conflict and hence the trial court should have left such determination to the trier of fact rather than having determined this issue by means of summary judgment. Understandably, appellee urges us to apply the principle enunciated in Wilson v. Milligan, Fla.App.1962, 147 So.2d 618 and Glens Falls Insurance Co. v. Fields, Fla.App.1966, 181 So.2d 187 under which appellants would be estopped to assert on this appeal the existence of genuine factual issues on the question of Leaseco's ownership of the truck when they had asserted in the trial court the nonexistence of genuine factual issues on that same specific question. While the rationale of the cited cases is somewhat appealing, we find no necessity to consider its applicability as we reach our decision in this case on an entirely separate basis.

All parties agree that on or about January 17, 1968, Leaseco, Inc. was either the legal or equitable owner of the truck. On that date Leaseco, Inc. entered into a written 'Lease Agreement' with George Bowman, Jimmy Bowman and Bobby Dale Bowman, d/b/a George Bowman & Sons, whereby the Bowmans obtained possession of the truck from Leaseco, Inc. It was under and by virtue of this agreement that Bobby Dale Bowman was in possession of the truck at the time of the fatal accident some 10 months later. The crucial issue can be simply stated: 'Did the parties intended the 'Lease Agreement' to be merely an equipment lease for the stipulated term of 34 months, whereby Leaseco, Inc., remained the owner of the truck, or did the parties intend the instrument to be a conditional sale, whereby ownership passed to the Bowmans and Leaseco, Inc. merely retained some type of security interest for the unpaid balance of the purchase price?

At hearing on the motion for summary judgment, the written document was before the trial court, its authenticity and execution conceded by all parties. The language contained therein is clear, plain and unambiguous. Entitled 'Lease Agreement', the agreement designated Leaseco as 'OWNER' and George Bowman & Sons as 'LESSEE' and states that the Owner lets and leases to Lessee, upon terms and conditions set forth, certain 'leased equipment', thereafter describing the 1966 Mack truck. Numerous times throughout the agreement the parties are respectively designated as 'Owner' and 'Lessee'. Notably absent from the agreement are the designations 'Buyer' and 'Seller' or terms of similar import as are generally used to identify parties to a sale of personal property. The term of the agreement was for a definite period of 34 months with no provisions whatever giving the Lessee an option to purchase, either during the term or upon termination. On the contrary, the agreement expressly provided that upon termination the 'leased equipment' was to be returned to the Owner in as good condition as when received by the Lessee, excepting ordinary wear and tear. The Lessee was required to procure and maintain in force liability insurance insuring both the Owner and the Lessee. The agreement provided that in registering the leased equipment with the authorities in any state, Lessee would be shown as the Registered owner and the Owner as the Legal owner. Other provisions relating to such matters as (a) restrictions on the Lessee's assignment without the Owner's consent, (b) the Lessee's obligation to bear the expense of all necessary repairs, maintenance and replacement, (c) the Owner's right to inspect, and (d) the procedures upon default in payment of the rental or other default, were all equally as consistent with the rights customarily reserved by a lessor as with those reserved by a vendor under a conditional sales contract. Finally, the agreement expressly provided that it included the entire agreement of the parties respecting the subject matter thereof.

The instrument being unambiguous, the parties' intention is to be deduced from the language employed. Smith Engineering & Construction Co. v. United States Fidelity & Guaranty Co., Fla.App.1967, 199 So.2d 302, and North Shore Realty Corp. v. Gallaher, Fla.App.1959, 114 So.2d 634. Here, the language clearly established that the parties intended the agreement to be that which it plainly purported to be, i.e., a lease agreement. Sanders v. National Acceptance Co., 5 Cir. 1967, 383 F.2d 606; Matter of the Atlanta Times, D.C.N.D.Ga.1966, 259 F.Supp. 820; Transport Rental Systems, Inc. v. Hertz Corp., Fla.App.1961, 129 So.2d 454; and Barnett v. Butler, Fla.App.1959, 112 So.2d 907.

The factual issues which appellants now assert to have existed as a bar to disposition by summary judgment are all matters extrinsic to the 'Lease Agreement'. For example, certain officers of Leaseco, Inc. testified upon deposition (1) that Leaseco, Inc., intended the transaction with the Bowmans to be a lease-purchase arrangement whereby Bowmans would acquire title upon completion of the rental payments notwithstanding the absence of an provision in the agreement for such, (2) that Leaseco, Inc., had not taken any depreciation on the vehicle after the contract with the Bowmans had been executed, and (3) that Leaseco, Inc., thereafter carried the vehicle on its records as a 'sold' vehicle. Jimmy Bowman testified on deposition that after he brought the truck to Florida (from Leaseco's place of business in Tennessee) he operated as a contract carrier with Belford Trucking Co., Inc., under the latter's I.C.C. permit, representing to Belford at that time that the Bowmans owned the truck. Of course, there was other evidence extrinsic to the Lease Agreement which tended to show that the transaction was simply that of a lease viz: the evidence which established that after the fatal collision, Leaseco, Inc., had the truck hauled by wrecker to its place of business in Nashville, Tennessee where the truck was repaired and put back into lease service, the collision insurance having been paid to Leaseco, Inc.

Obviously, if these extrinsic matters had been proper evidence bearing upon the intention of the parties to the transaction, factual issues would have existed. But all such extrinsic evidence which sought to contradict, vary or modify the complete and unambiguous written agreement between the parties was clearly inadmissible under the well-established parol evidence rule, no extended discussion of which need be had here. See generally 13 Fla.Jur., Evidence, §§ 382 et seq. On motion for summary judgment factual issues may not be created by reference to matters which at trial would be wholly inadmissible in evidence. Page v. Staley, Fla.App.1969, 226 So.2d 129; Lake v. Konstantinu, Fla.App.1966, 189 So.2d 171; and Evans v. Borkowski, Fla.App.1962, 139 So.2d 472.

Appellants' next point is that the court erred in granting plaintiff's motion in limine by which the defendants were prohibited from offering any evidence to show the possibility of plaintiff's remarriage. In an action for wrongful death of a spouse, evidence that the surviving spouse has remarried is irrelevant and therefore inadmissible. Seaboard Coast Line Ry. v. Hill, Fla.App.1971, 250 So.2d 311, cert. granted Fla.1971. If evidence of remarriage of the plaintiff spouse is inadmissible, evidence of the Possibility of remarriage would be inadmissible, not only because of being irrelevant, but also because of being too speculative and conjectural.

Finally, appellant complains that the court erred in admitting over objection evidence of the deceased wife's earnings outside of the household. In the case of Lithgow v. Hamilton, Fla.1954, 69 So.2d 776, our Supreme Court reviewed the elements of damages recoverable by a husband in an action for the wrongful death of his wife. Included therein as an element was the pecuniary value of the services...