St. John v. New Amsterdam Casualty Company, 21955.

• Decision Date: 03 March 1966
• Docket Number: No. 21955.,21955.
• Citation: 357 F.2d 327
• Parties: Mrs. Sarah ST. JOHN, for and on Behalf of her minor son, Anthony Ferrante, et al., Appellants, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

357 F.2d 327 (1966)

Mrs. Sarah ST. JOHN, for and on Behalf of her minor son, Anthony Ferrante, et al., Appellants, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee.

No. 21955.

United States Court of Appeals Fifth Circuit.

March 3, 1966.

August Bubert, John A. Slavich, George J. Garzotto, Sternfels, Garzotto & Slavich, New Orleans, La., for appellants.

Paul B. Deal, New Orleans, La., for appellee.

Before GEWIN and COLEMAN, Circuit Judges, and McRAE, District Judge.

GEWIN, Circuit Judge:

In this diversity personal injury action the trial court granted the motion of the appellee for summary judgment. The appellants, who are minors, contend that there were controverted issues of material fact; but that in any event, the judgment of the trial court cannot be sustained on the basis upon which it was rendered. The minute entry granting the appellee's motion which formed the basis of the judgment of the trial court is as follows:

"This cause came on this day for hearing on motion of defendant for summary judgment.

PRESENT: Paul B. Deal, Esq. Attorney for Defendant

Counsel for plaintiffs is not present Due to the failure of counsel for plaintiffs to appear in opposition;

IT IS ORDERED that motion of defendant for summary judgment be, and the same is hereby, GRANT." sic

The suit arose out of an automobile collision which occurred at night. The appellee took the depositions of the two plaintiffs and rested its motion for summary judgment on the depositions. The record in this case is very scant and incomplete. The depositions upon which the appellee relies were not included in the record before us. They are in the District Court record, were obtained by this court from the clerk of the district court, and were examined since they constitute the sole evidence in the case.

The collision involved three vehicles all headed in the same direction on Highway 51 near Hammond, Louisiana. The first was driven by one Bollinger, the second by Latino, insured by the appellee New Amsterdam Casualty Company, and the third was driven by Rosato. The two plaintiffs were guest passengers of Rosato and were riding on the rear seat. Another passenger, Richard Brooks, was riding on the front seat beside the driver. The automobile driven by Latino overtook and passed the vehicle in which the plaintiffs were riding. It was estimated that the Latino automobile was traveling at approximately 65 miles per hour when it passed the Rosato vehicle. The speed of Rosato was estimated to be approximately 55 to 60 miles per hour. The overtaking and passing occurred 2 or 3 minutes prior to the accident. The Rosato automobile in which the plaintiffs were riding followed at a distance of approximately 2 to 3 car lengths behind the vehicle operated by Latino. The Bollinger vehicle was stalled on the highway; the Latino automobile ran into it, and the automobile in which the plaintiffs were riding collided with the Bollinger and Latino vehicles.

One of the appellants stated that he was injured about his face, neck, on one of his legs, was dazed for several minutes, and did not "know what was what until five minutes after that," referring to the collision. The other appellant stated that he was "more or less...