GENERAL TRUCK SALES, INC., APPELLANT,
v.
AMERICAN FIRE & CASUALTY COMPANY, APPELLEE
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General Truck Sales appealed a summary judgment entered in favor of American Fire & Casualty Company on an employees' fidelity bond claim. The court affirmed, holding that the plaintiff presented no competent evidence of embezzlement beyond unexplained bookkeeping entries and untraced bank deposits.
The court held that unexplained bookkeeping entries and untraced bank deposits do not constitute competent evidence to support a recovery under an employees' fidelity bond, and summary judgment was properly granted.
“the pleadings, depositions and affidavits may not present an explanation, thoroughly satisfactory to the plaintiff, but, they do reveal that plaintiff has no basis for its claim, other than the report of its, auditors that book entries representing, certain sums of money purportedly- received by the corporation are not 'traceable, to the bank accounts”
Establishes that the plaintiff's sole evidence consists of untraced bookkeeping entries, which is insufficient as a matter of law
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Join FLexlaw to unlock all legal intelligenceThe plaintiff corporation experienced a change in ownership on December 16, 1953. In November 1954, an audit of the corporation's books was conducted,…
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The plaintiff below has appealed from a summary judgment entered in favor of the defendant. The action was based upon an employees’ fidelity bond. The pleadings, depositions and affidavits reveal the own-ship of the plaintiff corporation was changed by a contract of purchase entered into on December 16, 1953, and that subsequently in November of 1954, an audit of the corporation books was had. As a result of this audit “it was discovered by accountants for the plaintiffs that there was a possibility that various sums had been converted by the employee or employees of the plaintiff,” prior to the change in ownership. The proceedings upon defendant’s motion for summary judgment affirmatively established that the plaintiff had no basis for their suit other than certain unexplained bookkeeping entries. The defendant presented affidavits and depositions in an attempt to explain the bookkeeping procedures prior to the change in. ownership.
The pleadings, depositions and affidavits may not present an explanation, thoroughly satisfactory to the plaintiff, but, they do reveal that plaintiff has no basis for its claim, other than the report of its, auditors that book entries representing, certain sums of money purportedly- received by the corporation are not 'traceable, to the bank accounts. Such evidence, would not support a recovery by the; plaintiff. Hartford Acc. & Indem. Co. v. Hattiesburg Hdw. Stores, Miss., 49 So.2d 813. See 50 Am.Jur., Suretyship, § 361, and cases cited therein; also 16 A.L.R. 1499; supplemented in 56 A.L.R. 968.
The fundamental, purpose fór'fileJ,> summary judgment procedure is to relie-fre'''^ the litigant and the court from the ‘triad' of unnecessary lawsuits. Since the’^laiil-.'';t tiff did not present affidavits in opposition 1 to the. motion showing that --the: plaintiff ■ ■ could not “for reasons stated present b'y -t affidavit facts .essential to justify his opl position,” we must presume' that * it 'ha's gone as- far as it could go, . Sep, rule 1.36(f), 1954 Rules of Civil.Procedure',- 30 F.S.A.; Herring v. Eiland, Fla.1955, 81 So.2d 645.
Affirmed.
CARROLL, CHAS., C. J., and HORTON, J., concur.
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Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)…n support thereof or the court will presume that he had gone as far as he could and a summary judgment could be properly entered. Connolly v. Sebeco, Inc., Fla.1956, 89 So. 2d 482; General Truck Sales v. American Fire and Casualty Co., Fla.App.1958, 100 So. 2d 202; Jones v. Hartford Accident and Indemnity Co., Fla.App. 1959, 109 So. 2d 582. (3) Therefore, the party moved against by summary judgment or summary decree must come forward with facts contradicting those submitted by the movant and demonstrating a r…
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Gibbs v. Am. Nat'l Bank OF Jacksonville, 155 So. 2d 651 (Fla. 1st DCA 1963)…aterial fact and the summary judgment appealed was lawfully entered. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So. 2d 525 (Fla.App.1962); Crovella v. Cochrane, 102 So. 2d 307 (Fla.App.1958); General Truck Sales v. American Fire and Casualty Co., 100 So. 2d 202 (Fla.App.1958); Pritchard v. Peppercorn & Peppercorn, Inc., 96 So. 2d 769 (Fla.1957); Herring v. Eiland, 81 So. 2d 645 (Fla.1955) ; MacGregor v. Hosack, 58 So. 2d 513 (Fla.1952) ; City of Zephyrhills, Florida, v. R.E. Crummer and Company, 237 F. 2d…
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Tucker v. Am. Emp'rs Ins. Co., 218 So. 2d 221 (Fla. 4th DCA 1969)…nts serve a real and valuable purpose. “The fundamental purpose for the summary judgment procedure is to relieve the litigant and the court from the trial of unnecessary lawsuits.” General Truck Sales, Inc. v. American Fire & Cas. Co., Fla.App.1958, 100 So. 2d 202. The zeal of our courts in protecting and saving inviolate the right of the citizens to have a jury trial is, of course, praiseworthy. See 35B C.J.S. Federal Civil Procedure, § 1136,-30 Fla.Jur., Summary Judgment, § 8. But, this zeal can be overdon…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herring v. Wilber T. Eiland, 81 So. 2d 645 (Fla. 1955)