WILSON
v.
BACHRACH ET AL.
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A restaurant operator was granted summary judgment in a food poisoning case. The Florida Supreme Court reversed, holding that summary judgment was improper because the pleadings and depositions raised genuine disputes of material fact that required jury resolution.
Summary judgment was improper. The court held that a genuine issue of material fact existed requiring jury trial, and summary judgment should only be granted when all essential facts are undisputed and only the legal conclusion remains.
“It seems to us that the presence or absence of a cause of action was determined in plaintiff's favor when the court denied the motion to dismiss and that the ultimate question was the presence or absence of disputed facts relevant to the issue formed by the pleadings.”
Establishes that once the motion to dismiss was denied, the critical issue became whether material factual disputes existed.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff alleged he purchased unwholesome food at a restaurant operated by the defendants, became violently ill, and suffered grave damages. The …
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THOMAS, Justice.
The appellees, defendants in the trial court, were awarded a summary judgment and this appeal followed.
It was alleged in the amended complaint that the plaintiff had purchased of the defendants at the restaurant operated by them unwholesome food which caused him to become violently ill, and that he suffered grave damage as a consequence. The defendants’ motion to dismiss was denied, whereupon they filed an answer traversing all allegations of the complaint except the one that they did operate the restaurant named. With the pleadings in this state and with depositions taken by the parties on file the motion for summary judgment under 30 F.S.A.Common' Law Rule 43 was made on the ground “that the pleadings and depositions show that the plaintiff does not have a cause of action as a matter of law.” [Emphasis added.]
This rule provides that such a judgment shall be given “if the pleadings, depositions and admissions on file, * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” [Emphasis added.]
It seems to us that the presence or absence of a cause of'action was determined in plaintiff’s favor when the court denied the motion to dismiss and that the ultimate question was the presence or absence of disputed facts relevant to the issue formed by the pleadings. It is only in the event of absence of such an issue of fact that a judgment of this character may be employed to end a case without the intervention of a jury.
The appellees argue very plausibly in • their brief that they were entitled to a judgment, but the argument is based too much on1 the relative weight of their testimony and the construction which they think should be given all the testimony.
We 'have the definite impression from an examination of the pleadings and depositions, irrespective of the affidavits which appellees insist were not timely filed, that a real question of fact was developed and that the judge, in reality, tried the case. This procedure is not authorized by the rule. It is only where all essential facts are beyond dispute and nothing remains but to determine whether the movant is entitled to a judgment based on those facts that the operation of the rule obviates the need of a jury.
The judgment is
Reversed.'
ROBERTS, C. J., and HOBSON and DREW, JJ., concur.
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Citator
Cited By (16 total)
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W. O. Owens and his wife v. MacKENZIE, 103 So. 2d 677 (Fla. 1st DCA 1958)…gins v. Wilson, 55 Fla. 346, 45 So. 1011. . See Hallman v. Lipscomb, 114 S.O. 171, 103 S.E. 513; Clay v. Cummins, 207 Ala. 105, 91 So. 790. . Whitehall Realty Corp. v. Manufacturers Trust Co., Fla.1955, 81 So. 2d 475; Wilson v. Bachrach, Fla.1953, 65 So. 2d 546.…
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Fouts v. Household Fin. Corp., 75 So. 2d 772 (Fla. 1954)…ine issue as to a material fact, then the case should be submitted to a jury. Williams v. City of Lake City, Fla., 62 So. 2d 732; Wilson v. Lee Memorial Hospital, Fla., 65 So. 2d 40; Amderson v. Maddox, Fla., 65 So. 2d 299; Wilson v. Bachrach, Fla., 65 So. 2d 546. Under the circumstances shown in this case, the instructions hereinabove quoted given by the manager to Bruñe contradicted the conclusion in the affidavit of Hall that Bruñe was “never authorized to commit a trespass or use violent and abusive lan…
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Whitehall Realty Corp. v. Mfrs. Tr. Co., 81 So. 2d 475 (Fla. 1955)…and as to whether, at, the time the plaintiff discounted the -notes for the Spring Trading Corporation, it was -on notice that no consideration had as yet passed to that. Corporation from Whitehall. As in the case of Wilson v. Bachrach, Fla., 1953, 65 So. 2d 546, “We have the definite impression from an examination .of the pleadings and depositions, .irrespective of the affidavits which appellees insist-were not timely filed, that a real question of fact was developed and that the judge, in reality, tried t…
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