This is a suit to recover for personal injuries. The plaintiff alleges that one Blakely, an employee of a finance company, came to her home to collect ten dollars due to his employer and, in the course of his conversation with the plaintiff, became progressively more violent and finally struck and kicked her and committed certain other acts.
The trial court sustained a motion for summary judgment filed by Blakely's employer (Aetna) and the employer's liability insurer (Fidelity), who had been joined as codefendants along with Blakely. Aetna and Fidelity contend that they are not liable for any tortious acts against the plaintiff committed by Blakely because
Primarily, the plaintiff-appellant contends that the remedy of summary judgment was improperly allowed to the appellees, since the pleadings and exhibits show that there is a genuine issue of material fact which must be resolved before the liability question may be determined.
The summary judgment procedure is an innovation in our practice created by the 1960 LSA-Code of Civil Procedure, Articles 966 et seq. Subsequent to our learned trial brother's granting a summary judgment herein, several decisions have greatly clarified and limited the availability of this remedy. See especially Kay v. Carter, La., 150 So.2d 27 (Docket No. 46,341, decided February 18, 1963); also: Ellis v. Johnson Lumber Co., Inc., La.App. 3 Cir., 150 So.2d 838; McDonald v. Grande Corporation, La.App. 3 Cir., 148 So.2d 441; and Touchet v. Fireman's Insurance Company, La.App. 3 Cir., 146 So.2d 441.
Basically, these cases hold that the summary judgment remedy, which deprives a litigant of trial on the merits, is not a substitute for such trial and may not be resorted to whenever there is a genuine issue of material fact which must be resolved; that, in passing upon a motion for summary judgment, the function of the court is not to determine the merits of the issues raised, but it is rather only to determine whether or not there is a genuine issue of material fact; and that the burden to show there is not a material factual issue is upon the mover for summary judgment, with all doubts to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts.
In urging that the trial court properly rendered summary judgment dismissing the plaintiff's claims against the defendant employer and its insurer, the defendants primarily rely upon certain testimony in the plaintiff's deposition to the effect that Blakely really came to her home for sexual purposes rather than to collect a dishonored check for ten dollars which the plaintiff had previously made out to Blakely's employer. Thus, it is argued, Aetna is not liable for the torts allegedly committed by its employee upon the plaintiff, because at the time its employee was not acting within the scope of his employment and in the performance of his duties for his employer. See, e. g., Golman v. Fidelity & Cas. Ins. Co., La.App. 3 Cir., 146 So.2d 461.
This argument overlooks, however, that the deposition of Blakely, the appellee Aetna's employee, indicates that he came to the plaintiff's home solely to collect monies for his employer and that he and the plaintiff then entered into a physical scuffle after she had seized the bad check from his hands and he grabbed it back. Although he denied ever pursuing the plaintiff completely through the door into her house, in her deposition the plaintiff testified that, after a verbal argument, Blakely pursued her into her bedroom after she had closed the door upon him, grabbing her neck and hitting her.
Counsel for the defendants-appellees argues that, even if so, the defendants are still not liable, either because Blakely's acts were outside the scope of his employment, or else because the plaintiff cannot recover for injuries primarily resulting from her own aggression.
We think this argument overlooks the recent clarifying jurisprudence setting forth the heavy burden of the mover for summary judgment to prove that there is no genuine issue of fact. It is not enough to suggest that it is unlikely that the plaintiff may recover due to inconsistencies, etc., in her testimony, or that the preponderance of the evidence and exhibits considered on the trial of the motion may indicate that there is no liability.
The appellees, Aetna and Fidelity, were therefore not entitled to summary judgment dismissing the plaintiff's suit against them.
Having reached this conclusion, it is unnecessary to discuss several other contentions urged.
For the reasons assigned, the summary judgment appealed from is reversed and set aside, the motion for summary judgment is overruled, and the case is remanded to the district court for further proceedings not inconsistent with the views herein expressed. All costs in connection with the motion for summary judgment, as well as the costs of this appeal, are assessed against the defendants-appellees. Assessment of other costs shall await final determination of this suit.
Reversed and remanded.
On Application for Rehearing.
En Banc. Rehearing denied.