Whitaker v. Coleman

• Citation: 115 F.2d 305
• Decision Date: 06 November 1940
• Docket Number: 9444.,No. 9443,9443
• Parties: WHITAKER v. COLEMAN. SAME v. ÆTNA CASUALTY & SURETY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

115 F.2d 305 (1940)

WHITAKER v. COLEMAN.

SAME v. ÆTNA CASUALTY & SURETY CO.

Nos. 9443, 9444.

Circuit Court of Appeals, Fifth Circuit.

November 6, 1940.

William C. Sugg, of Nashville, Tenn., for appellant.

C. L. Watts and Addison White, both of Huntsville, Ala., for appellees.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The first of the above numbered causes was a suit brought against the owner and the driver of an automobile for death damages. The second was a suit for declaratory judgment, that it was not liable as insurer, brought by the insurer on a policy covering the owner as named insured and "any person while using the automobile * * * with the permission of the named insured." Appellant was plaintiff in the first, defendant in the second, of the above numbered causes, and in both cases he seasonably made his demand for a jury. The insurance company as the plaintiff in the declaratory judgment suit and as manager of the defense in the damage suit, invoked the summary procedure of Rule 56, Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, and after a hearing in which plaintiff proffered statements¹ of the driver, on the tendered issue that he was an "insured", obtained a summary judgment first in the declaratory judgment suit in favor of itself and next in the damage suit in favor of the defendant owner.

Appealing in each case from the summary judgment against him, appellant is here insisting as to each that there was a genuine issue as to a material fact whether the driver was an "insured" within the policy terms,² and that he has been deprived of his right of trial by jury. We think it clear that appellant has been so deprived and that the judgments must be reversed because he has. The invoked procedure, valuable as it is for striking through sham claims and defences which stand in the way of a direct approach to the truth of a case, was not intended to, it cannot deprive a litigant of, or at all encroach upon, his right to a jury trial.

Judges in giving its flexible provisions effect must do so with this essential limitation constantly in mind. To proceed to summary judgment it is not sufficient then that the judge may not credit testimony proffered on a tendered issue. It must appear that there is no substantial evidence on it, that is, either that the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that conceding its truth, it is without legal probative force. Testing appellant's offer of proof by this rule, it plainly appears that an issue on which he is entitled to a jury trial has been summarily determined against him.

In American Casualty Company v. Windham, 5 Cir., 107 F.2d 88, 90 (following the rule carefully set out in Columbia Casualty Co. v. Lyle, 5 Cir., 81 F.2d 281, and Standard Accident Insurance Co. v. Rivet, 5 Cir., 89 F.2d 74, in both of which coverage was denied because the use was in violation of express prohibition), we have recently said: "Permission to use a car may be implied in the absence of express prohibition."³ The evidence in this case, if Jones' statements are believed, is stronger for coverage than the evidence in Windham's case was. Appellant had demanded a jury and it was not for the judge in summary proceedings to determine Jones' credibility. But, says appellee, in the first case Jones' affidavit was not offered but only a transcript of his testimony on his former trial and because of defects in its certification and presentation, the judge was justified in refusing to receive this transcript as proffered evidence, while on the second trial, though Jones' affidavit was offered the judgment was res judicata in the first case and this, pleaded as such, entitled it to summary judgment in the second case. We think that this will not at all do. Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists. Rule 56 is carefully drawn to effectuate this purpose. Subdivisions (a) and (b) provide for the institution of the procedure. Subdivisions (c) and (d) provide, the one for complete, the other for partial determination of the existence of genuine issues as to material facts. Subdivision (e) provides for affidavit and other forms of proof while Subdivision (f), making it further clear that the judgment is to be rendered only where it clearly appears that there is no issue, provides for the granting of a continuance to obtain proofs which appear to be existent but not then...