Olympic Ins. Co. v. Harrison, Incorporated

• Decision Date: 06 October 1969
• Docket Number: No. 27862.,27862.
• Citation: 418 F.2d 669
• Parties: OLYMPIC INSURANCE COMPANY, Plaintiff-Appellee, v. H. D. HARRISON, INCORPORATED d/b/a Harrison Insurance Service, Hugh D. Harrison, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 669 (1969)

OLYMPIC INSURANCE COMPANY, Plaintiff-Appellee, v. H. D. HARRISON, INCORPORATED d/b/a Harrison Insurance Service, Hugh D. Harrison, et al., Defendants-Appellants.

No. 27862.

United States Court of Appeals Fifth Circuit.

October 6, 1969.

Carl J. Schumacher, Jr., Clarence F. Favret, Jr., Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Donald R. Mintz, New Orleans, La., for defendants-appellants.

Rader Jackson, Steeg & Shushan, Moise S. Steeg, Jr., New Orleans, La., for plaintiff-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

In Olympic Insurance Company v. Harrison, 5 Cir.1969, 413 F.2d 973 July 3, 1969, we dismissed the appeal for failure of the appellant to comply with the provisions of Rule 12(c), Federal Rules of Appellate Procedure with respect to payment of the $25.00 docket fee. On July 16, 1969, we suspended the issuance of the mandate until we could consider the appellants' brief on the merits. A careful review of the briefs and the record reinforces our initial conclusion that the appeal was without merit. Therefore we deny the appellants' motion for a rehearing and order the appeal dismissed.

Although the appellants' brief is lengthy and numerous errors are asserted, the essential thrust of the appellants' argument is that the amount which the district court found due was inaccurate and therefore a material issue of fact was raised which could not be resolved by summary judgment. We disagree largely for the reasons advanced by the unpublished memorandum of the district court. (See Appendix).

We make the following additional observations. First, we find no merit to the contention that the I.B.M. printouts, which formed the basis of the insurance company's proof that Harrison had not paid over premiums he had collected, were unreliable. There can be no dispute that the printouts were produced in the ordinary course of business and at least have a prima facie aura of reliability. See Title 28, U.S.C., Sec. 1732. In view of the appellants' failure to list any specific objections as to the accuracy of the printouts, we cannot say that the district court erred in relying on them as the basis for its judgment.

Second, the appellants now assert that the insurance company failed to credit them with contingent commissions and therefore there was a material issue of fact as to the amount owed. The appellants made no claim below as to any specific amount owed them as a result of the Company's failure to credit them with contingent commissions. Therefore their complaint must fail. (See Appendix). Additionally, the agency contract clearly reveals that the appellants had no claim to contingent commissions at the time of the judgment. The contract states:

"In the event of termination the computation of General Agent\'s contingent commission shall not be made until all of Company\'s obligations under policies written hereunder shall have been terminated". (Emphasis added)

The appellants made no suggestion at trial and make none on appeal that the trailer insurance issued by it as general agent, has expired. It is clear from the agency contract that until such policies expire and the Company's obligations thereunder are terminated, the appellants are not entitled to contingent commissions. Thus we conclude that the amount found due by the district court is free from inaccuracy.

The appellants' motion for a rehearing is denied and the appeal is dismissed. Let the mandate issue immediately.

APPENDIX

CASSIBRY, District Judge:

Plaintiff instituted suit against H. D. Harrison, Incorporated, d/b/a Harrison Insurance Service, praying for an accounting and judgment for the amount due by H. D. Harrison, Incorporated (Corporation) to plaintiff for insurance premiums arising out of policies written by Corporation as plaintiff's Agent. Plaintiff also sought a judgment against Hugh D. Harrison and his wife, Robbie Sutton Harrison, individually, based upon written guaranties executed by the individuals to secure the obligation of Corporation. An Answer was filed by the Corporation admitting that it was plaintiff's Agent, but entering a general denial to all other allegations and asserting certain special defenses which in turn were the basis of a counterclaim.

Plaintiff moved for a summary judgment, and for a default judgment against Robbie Sutton Harrison for whom no responsive pleadings were filed. Counsel for Robbie Sutton Harrison moved that the suit be dismissed as to her or the citation quashed on the ground that improper service had been made. Plaintiff admitted that proper citation had not been made, but urged that since the motion by which the firm of Lemle and Kelleher were made counsel of record included them as counsel for Robbie Sutton Harrison, this constituted an appearance and thus waived the defective citation, citing United States v. Hoerner, D. Montana 1957, 157 F. Supp. 563. While it is correct that as a general rule any action on the part of a defendant, except objection to jurisdiction over his person, will constitute a general appearance, the mere filing of a motion recognizing counsel who then object to the jurisdiction is not such "action" as contemplated by Hoerner, and accordingly, Robbie Sutton Harrison's motion to dismiss this suit for lack of jurisdiction should be granted.

Plaintiff moved for a summary judgment in the amount of $302,755.63. In support of its motion and according to the local rules, plaintiff filed a "Statement of Undisputed Material Facts," an affidavit and other documents consisting primarily of an itemized statement of the account between plaintiff and defendant (sworn to by a principal officer of plaintiff), and the original of a check paid by defendant on this account but concerning which payment had been stopped. Plaintiff contends, and I agree, that this is affirmative, specific, factual proof of the indebtedness of defendant to plaintiff as of October 31, 1968.

Defendant filed its counter affidavit, but failed to comply with the rule requiring the filing of a "Statement of Material Facts at Issue." Plaintiff contends that defendant's affidavit should not be considered.

When the motion for summary judgment was first brought on for hearing, counsel moved for a continuance on the ground that a full set of the documents in support of plaintiff's motion (although served on Clarence F. Favret, Jr., Esq., one of attorneys of record) had not been served on associate counsel, Carl Schumacher, Esq. A continuance was granted and thereafter a counter affidavit was filed on behalf of Corporation and Hugh D. Harrison. Plaintiff moved that this continuance and permission to file affidavit be recalled. It is not necessary to rule on the legal contentions made by plaintiff. Even if technically correct, it is within the sound discretion of this court to permit the filing of affidavits at anytime, even after the hearing, if the ends of justice would be properly served. 6 Moore's Federal Practice, 2d. Ed., Sec. 56.23, p. 2853. In a matter of such consequence as this, it would not be proper for this court to rule without considering defendant's affidavit, therefore, plaintiff's motion in this contention is overruled.

The court now has before it the affidavits of both parties and must determine whether a genuine issue of fact exists and if not, the court is compelled to grant plaintiff's motion for summary judgment.

The law with respect to the granting of a summary judgment in a matter such as this is clearly set forth in F.R. Civ. P. 56 and Rule 4 of this court. The doctrine following in this jurisdiction is clearly enunciated in these three decisions: Bruce Construction Corporation v. United States of America, 242 F.2d 873 (1957); Lawhorn v. Atlantic Refining Company, 299 F.2d 353 (1962) and Royal Indemnity Company v. United States, 371 F.2d 462, 178 Ct.Cl. 46 (1967). In Bruce...